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.

Arbitration Case Law Update

By: Donna Greenspan Solomon 
Published: July/Aug 2021

O’Neal Constructors, LLC v. DRT Am., LLC, 991 F.3d 1376 (11th Cir. 2021).  Service of a “notice of a motion to vacate” under 9 U.S.C. § 12 is not accomplished by emailing a “courtesy copy” to opposing counsel where party to be served did not expressly consent in writing to service by email.

Mexicanos v. Executive MFE Aviation, LLC, 310 So. 3d 76 (Fla. 4th DCA 2021). Trial court could not deny aircraft purchaser’s motion to compel arbitration of claims asserted by aircraft maintenance and repair servicers, on the ground that aircraft purchase agreements containing arbitration clauses had expired before claims arose, without first determining whether servicers, who were not parties to the purchase agreements, were nevertheless bound by the arbitration clauses; purchaser alleged that servicers were bound by virtue of their joint venture with aircraft seller or as third-party beneficiaries of the purchase agreements, and if servicers were in fact bound, and if purchaser has not waived right to arbitrate, then remaining issues of arbitrability, including whether the agreements had terminated, were for arbitrator to decide.

Black Knight Servicing Techs., LLC v. PennyMac Loan Services, LLC, 310 So. 3d 1116 (Fla. 1st DCA 2021).  Loan services limited liability company (LLC) did not waive its contractual right to arbitration with servicing technology LLC by filing a separate lawsuit raising separate claims against the servicing technology LLC’s parent company in federal court; parent company was a legally separate entity from servicing technology company, and loan services LLC’s lawsuit in federal court was carefully worded and did not mention its contractual relationship with servicing technology LLC, which suggested an intent to safeguard its arbitration right.

Jean v. Bayview Loan Servicing, LLC, 46 Fla. L. Weekly D331 (Fla. 3d DCA Feb. 10, 2021).  Trial court was required to conduct evidentiary hearing to determine whether arbitration agreement existed between employee and employer in action seeking damages for unpaid overtime compensation; employee alleged he had never received, reviewed, or signed dispute resolution and arbitration policy, employee alleged electronic acknowledgement of his signature on arbitration policy was either forged or falsified, and employer alleged all employees were required to electronically sign arbitration policy as a condition of continued employment.

Kratos Investments LLC v. ABS Healthcare Services, LLC, 46 Fla. L. Weekly D603 (Fla. 3d DCA Mar. 17, 2021).  Exception in arbitration clause in insurance company’s agreements with agents, allowing insurance company to pursue its equitable remedies in any court of competent jurisdiction, did not apply to insurance company’s claims against nonsignatory businesses for conspiracy to breach agent agreement and tortious interference with agent agreement, and thus nonsignatory businesses could compel arbitration of the claims, although insurance company’s prayer for relief sought equitable remedy of disgorgement; each count of insurance company’s complaint asserted a legal cause of action seeking compensatory damages such as consequential damages, lost profits, and disgorgement of ill-gotten gains.

Fallang Family Ltd. P’ship v. Privcap Companies, LLC, 46 Fla. L. Weekly D639 (Fla. 4th DCA Mar. 24, 2021).  On motion to compel arbitration, arbitration agreement that made reference to “AAA” and “AAA rules and procedure” did not clearly and unmistakably supplant trial court’s statutory power to decide what was arbitrable, despite AAA Commercial Arbitration Rule giving arbitrator authority to decide what controversies were within scope of agreement; arbitration agreement did not attach any portions of AAA rules or explain where those rules could be found, arbitration clause did not identify which subject-area version of AAA rules applied, and AAA Commercial Arbitration Rules, had they been specified, did not grant exclusive authority to arbitrator to decide arbitrability.

Lemos v. Sessa, 46 Fla. L. Weekly D701 (Fla. 3d DCA Mar. 31, 2021).  Cost-shifting and fee-shifting provisions of arbitration clause in retainer agreement entered into by client and her attorney and law firm, particularly when coupled together, were a de facto attempt to preemptively limit attorney’s liability by chilling client’s willingness to dispute any issue of client’s representation, and thus were violative of public policy and invalid; although cost-shifting provision allowed for after-the-fact adjustment by arbitrator, provision would require client to pay, in advance, all costs associated with arbitration, and fee-shifting provision would require client to pay all of attorney’s fees and costs associated with an arbitration, which was not conditioned upon attorney prevailing in arbitration and which was not reciprocal, creating a deterrent effect.

UATP Mgmt., LLC v. Barnes, 46 Fla. L. Weekly D875 (Fla. 2d DCA Apr. 16, 2021).  Friend of child’s mother who warranted and represented that she had mother’s actual or implied authority to execute release and waiver of liability at indoor amusement park did not establish apparent authority to do so, and, thus, valid arbitration agreement did not exist to require arbitration of suit for child’s injuries; agreement was not signed by mother against whom franchisor sought enforcement, and franchisor did not argue that mother represented anything to franchisor and did not rely upon any representation by mother.


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.

I Just Had the Best Mediation….

By: Kathryn McHale 
Published: June 2021

This is what all parties should say after they have mediated a case.  But they don’t, why not?   You have heard that the best settlement or mediation is when everyone leaves unhappy because that means they all gave up something.   How can you have the best mediation?

The decision-makers must participate.   With most, if not all, mediations by Zoom these days, the decision-makers should be participating as they can be available by phone, if not in person on Zoom.   The adjuster who has the authority is listening to the mediation and can then make the decision on whether to settle or not.   He or she is given the real-time opportunity to gain a realistic understanding of the dispute.

The choice of a mediator – Why do you choose a mediator?   Is it because of past successes?  Is it because of his or her expertise in the subject?  You should pick a good listener, a people person who can handle all types of personalities, a deal maker, and someone who can handle the technology challenges we face with Zoom mediations.

Build a Deal – Successful mediations are the ones where a significant expenditure of effort is put forth by both parties before the mediation occurs of laying the framework of the necessary facts, strengths, and weaknesses, analyzing critical legal issues, and finding options that both parties can live within a settlement. The goal is a resolution.  You must be concerned with your own interests and also take into account the interests of the opposing party.  From this, a deal can be made.

Important evidence should be present – In our Zoom world, this means that the important documents or evidence need to be available and shareable during the mediation presentation and caucuses.   Unless it is an early mediation, you should be prepared to put your cards on the table and show some of your hand, if not all of it.    The attorneys know what the strengths and weaknesses of their case are; but the parties, adjusters, and mediators do not necessarily know them in detail.   We all listen to the same presentation, but we may hear different facts that affect us more than someone else.   If there is something that is crucial to how a case is valued, it should be part of the mediation process.

Be realistic – When demands and offers have been made pre-mediation, that should be a starting point for where the mediation begins.   There are times when different demands and offers are made which are lower than what was previously made; but they should be the rarity and based upon something that has transpired in the case since the demand or offer was made.   If frustration starts at the beginning, it is hard to get back on track and achieve the goal of a settlement.

Be patient. Some things take time – We live in a timed world.    Most mediations take time too. When you set aside two hours for mediation, that may not be enough time.   Mediations involve change.  Change involves time to change.  A party in a lawsuit is entrenched in his/her position and believes that he/she is right in those beliefs.   Each side may or may not understand its own interests and those of the other party, and each may have unrealistic expectations.   It takes time to address these issues, and it takes time for people to change their minds. Your mediator should be patient too to help facilitate the change in positions.

Problem Solving – A resolution or signed settlement agreement is the ultimate goal of every mediation.   How do you get there?  Problem-solving involves creativity and an open mind.   There is a lot of brainpower at the mediation; find ways to use it.   Be open to ideas generated from the mediator as to how you can close the gap to a settlement.   Let the mediator help reconcile the interests as he/she hears both sides and can utilize that information to help facilitate a resolution.

What if we don’t settle? – Sometimes the parties just need a little more time to think about what they heard, saw or learned at the mediation.   You should know more about your case after a mediation.   Their strength is maybe not as strong as they thought.   The other party’s weakness was not really a weakness, legally.  The Motion for Summary Judgment was not as scary as they thought once all the evidence was put forth.  Most mediators are willing to continue to help resolve the issues once the parties have left mediation.   Let them.  You selected the mediator to help you get across the finish line and when you think you can get there with just a little more communication let the process continue even after you have left that Zoom call.

So, ask yourself after a mediation: did I achieve my client’s goals?  Did we use our time effectively?  Were we realistic?  Were we patient?  I just had the best mediation.


Kathy McHale is a Florida Bar board-certified civil trial attorney.  She specializes in employment and construction litigation.  Kathy is a Florida Supreme Court certified civil and family law mediator, a member of the American Arbitration Association’s roster of arbitrators and mediators (Employment and Construction panels), a Florida Supreme Court Qualified Arbitrator and a FINRA-Approved arbitrator.  Ms. McHale serves on the Florida Bar Civil Trial Law Certification Committee.  She is two-term Past President of the Martin Chapter of the Florida Association for Women Lawyers.  Kathy can be reached at (561) 379-5030 or Kathy@KMcHaleLaw.com or by visiting www.KMcHaleLaw.com.

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

Arbitration as a Solution During and After the Pandemic

Published: May 2021
By: Daria Pustilnik 

While courts experience an unprecedented backlog of cases, and trials are largely on hold, agreeing to a binding arbitration can be an effective approach to dispute resolution for commercial cases.  Before the pandemic, parties primarily considered whether arbitration would be cheaper and faster than litigation.  In light of the pandemic, arbitration has emerged as a faster route to the final resolution of a commercial dispute.

In particular, because of trial restrictions, Florida is experiencing a significant buildup of cases. The Florida Trial Court Budget Commission reported that as of June 2020, Florida courts had a backlog of 992,074 cases and 4,987 delayed trials.[1]  By November 2020, these numbers went up to 1,147,703 cases and 5,187 delayed trials.[2]   Notably, approximately 84% of delayed trials are criminal.  On September 1, 2020, Chief Judge Krista Marx stated that upon resumption of trials, criminal cases will take priority.[3]  It is estimated that it will take Florida courts several years to resolve the backlog of cases. Therefore, civil cases will be trapped in the court system, and a commercial contract dispute may not be set for trial for several years.  At the same time, the pandemic has led to an increased number of disputes.  Luckily, arbitration is an effective option for commercial cases that can provide significant benefits when compared to litigation.  The benefits may include:

  • Relative speed.
    • In light of the backlog of cases and limited availability of trials, arbitration will allow a case that does not settle to proceed to a final hearing and a resolution.
  • Customizable procedures and relatively informal process.
    • Arbitration is highly customizable. The parties are free to adopt the rules of a forum, adopt modified rules, or create their own rules for an ad hoc process. Many institutions’ rules make expedited procedures available for disputes that satisfy certain criteria, which could be advantageous. Routine hearings are usually conducted remotely, and final hearings may be conducted remotely, if necessary.
    • Generally, arbitration is private. The need for privacy can be specified in the arbitration agreement and confidentiality is a feature of the rules of most, if not all, arbitration institutions.
    • Arbitration provides the parties an opportunity to select an arbitrator or a panel with experience in the industry or the particular area of the law that is relevant to the dispute. This may contribute to a speedy and efficient resolution.
    • The hearings in international and domestic arbitrations have often been conducted remotely even before the pandemic, and the tribunals are used to employing technology to advance cases.
    • Arbitration can be an effective cost-cutting tool. For example, generally in arbitration, the rules of evidence are relaxed, and there is less discovery and motion practice. The resulting cost savings often offset the arbitrator’s or the panel’s fees.  Of course, the rules vary from forum to forum and, similarly to litigation, the cost will greatly depend on the parties’ approach.

The process for jointly submitting to arbitration is simple: the parties must enter into an agreement to arbitrate and file a claim with the forum, such as the American Arbitration Association, JAMS, or International Centre for Dispute Resolution (unless the parties decide to conduct an ad hoc arbitration without the assistance of a forum). To realize the benefits of arbitration, the parties should carefully craft the arbitration agreement and may wish to consider the following aspects:

  • Pre-arbitration mediation.
  • Forum/institution or an ad hoc arbitration.
  • Governing law.
  • Adoption of the institution’s rules (whether those in effect at the time the contract is signed or including any future amendments) or modified rules. If a set of rules is adopted, the following often will be addressed, but the parties can provide for modifications.
  • Single or multiple arbitrators.
  • Appointment procedure for the tribunal.
  • Requirements for specialized knowledge or expertise of the arbitrator(s).
  • Rules for communications with the tribunal.
  • Availability and procedure for:
    • Preliminary injunctions.
    • Dispositive motions.
    • Expedited resolution of disputes involving low amounts in controversy.
    • Withdrawal of claims.
    • Combining of the disputes.
  • Time limit for the completion of arbitration.
  • Entitlement to attorneys’ fees and costs and fees for seeking fees.
  • Availability of an appeal and appellate procedure.

All these issues have been subject to disputes in my practice. I find that the arbitration clauses the parties draft when structuring deals and well before any disputes arise often tend to be short and do not address many procedural aspects.  Addressing these in the arbitration clause can result in significant cost savings during the arbitration. 

In sum, arbitration can present significant advantages as well as be an effective tool for dispute resolution during and after the pandemic. Parties and their counsel should consider this option while the courts struggle to resolve the backlog of pending cases.


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 cases pursuant to 28 USC § 1782. Daria is experienced in handling matters involving simultaneous arbitration, bankruptcy, civil and agency proceedings in multiple jurisdictions, such as the US, 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.  

[1] Trial Court Budget Commission Jan. 22, 2021, Meeting Agenda, Agenda Item V.: 2021 Legislative Session Update, Pandemic Generated Workload Statewide Estimates (available at https://www.flcourts.org/content/download/714796/file/TCBC%20Meeting%20Packet%201-22-2021.pdf) (accessed on March 14, 2021). 

[2] Id.

[3] Chief Judge Krista Marx discusses backlog in Palm Beach County courts (Sept. 1, 2020) (available at https://www.msn.com/en-us/news/crime/chief-judge-krista-marx-discusses-backlog-in-palm-beach-county-courts/vi-BB18zHdr (accessed on March 14, 2021).

Like Rollin’ the Dice in Vegas

Published: April 2021
By:  Tami Augen Rhodes

Two attorneys, a CPA, and a Mediator walk into a room….  Sounds like the beginning of a joke, right?  However, it is unmitigatedly serious.  These four individuals agreed that we could try the case ten different days in front of ten different judges and get ten different results.  The reason this is so concerning to the parties is because this involves their children, property, hopes, and dreams.  It is the end of the life they thought they were building together and now, they must go through a process fraught with fear, confusion, and uncertainty where a person who has known them about eight hours – the Judge – will make a decision regarding the rest of their lives.

However, many family law practitioners are starting to believe there is a better way for Florida families to navigate their divorce.  Florida has adopted the Collaborative Law Process Act, §61.55 et seq., which provides in part, “[t]he collaborative law process is a unique nonadversarial process that preserves a working relationship between the parties and reduces the emotional and financial toll of litigation.”  One highlight of Collaborative Law, is that the parties, their collaboratively trained counsel, and other professions involved in the matter enter into a  Participation Agreement which ensures that no Collaborative Team member will proceed to litigation with either party should the collaborate process not resolve the matter and the parties ultimately litigate.

Collaborative Law is a process choice.  Process choices run the gamut from parties sitting down for coffee together writing out the terms of an agreement on the proverbial paper napkin to lengthy, no holds barred, multi-day trials.  While there are many avenues into the Collaborative process, the end result is that both parties retain collaboratively trained counsel.  The core team is typically rounded out by a Neutral Mental Health Professional and Neutral Financial Professional.  However, there is no limit on who can become involved in the process and join the team.  This is truly a “client-centric” approach and the professional team and parties can bring in any other type of professional to assist in the process.  For example, a particular matter may call for a child specialist or one party may seek the assistance of a Financial Professional who is not the team Neutral Financial Professional.

I want to be clear that the Collaborative Law Process is not solely for parties who want to hold hands and sign Kumbaya.  This is perhaps one of the biggest fallacies regarding Collaborative Law.  Many practitioners may wonder how two people who have gotten to the point of ending their marriage would ever be able to sit down together, discuss issues rationally and respectfully, and evaluate different solutions.  Whereas other civil litigation has a winner take all outcome; family court is equitable where, absent extenuating circumstances beyond the scope of this article, neither party “wins” all of the assets or child timesharing.

The Collaborative Law Process allows for streamlined discovery.  Specifically, the Neutral Financial Professional communicates with both parties to obtain necessary documents and discovery.  People are not perfect, and the parties to the Collaborative Process are not always perfect either.  However, unlike traditional litigation which can sometimes have long and drawn out disputes regarding hidden assets, protective orders to prevent discovery, and hearings to compel discovery; the attorneys involved in the Collaborative Process are trained to address these issues head-on and assist the client in moving toward a place of acceptance and understanding in regard to the need to freely provide discovery so that any difficult or sensitive issues can be dealt with in a forthright and respectful manner.  The professional team helps to create a safe space for the parties to operate within in order to accomplish the dissolution of marriage and resolve all issues presented.

Being able to create that safe space to deal with complex family law issues is another highlight of the Collaborative Process.  One example is in the realm of children’s issues.  At first blush, it may appear that the Collaborative Process would not be appropriate for a party dealing with substance abuse disorder when minor children are involved.  I would suggest, it is just the opposite.  Within the safety of the Collaborative Process, a parent can address the real issues surrounding his or her substance abuse.  The team can pause the Collaborative Process and help that party obtain much needed rehabilitation and other services.  They can respectfully acknowledge the delicate balance and care that is required when a parent-child relationship needs to be considered in light of a parent’s substance abuse and create a mechanism that does not serve to punish the parent but, instead, provides continuing safe access along the path to sobriety.

Contested family law litigation which leaves lifelong decisions in the hands of a Judge who has known the family for perhaps mere hours, is like rolling the dice in Vegas.  If you want to improve the odds of parties adhering to a long-term resolution, a buy-in to the Collaborative Process should prove much more successful than a buy-in at the poker table.


Tami L. Augen Rhodes practices exclusively Marital and Family Law and is the principal at The Law Offices of Tami L. Augen, P.A.  She is the Immediate Past President of the Craig S. Barnard American Inn of Court LIV; the Founder and President of the Palm Beach Academy of Collaborative Professionals; and is SuperLawyers and AV rated.  You can contact her via www.tamiaugenlaw.com

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

The Singapore Convention on Mediation and Its Impact

Published: March 2021
By: Rosine M. Plank-Brumback

A new international instrument has joined the ranks of multilateral treaties governing the resolution of cross-border commercial disputes. Its official name is the United Nations Convention on International Settlement Agreements Resulting from Mediation. The treaty enables the enforcement of mediated settlements by its ratifying states. It aims to promote the use of mediation as an alternative to litigation and arbitration, to preserve commercial relationships, as well as to facilitate broadly international trade and investment, contribute to harmonious international economic relations, and promote access to justice for all by bringing greater certainty and stability to the international framework on mediation.

The treaty is known as the Singapore Convention (the “Convention”) as Singapore’s government played a key negotiating role and hosted the treaty signing ceremony on August 7, 2019. To date, 53 States have signed the Convention, including the United States, China, India, and South Korea. By signing, a State shows it intends to take steps to implement and be legally bound domestically by the treaty; i.e., ratification at the “national” level. The Convention entered into force on Sept. 12, 2020. To date only 6 States (Belarus, Ecuador, Fiji, Qatar, Saudi Arabia, and Singapore) are Parties to the Convention having ratified it at the “international” level; i.e., expressing to the international community they undertake the treaty’s obligations to enforce mediated settlement agreements, by “depositing” (or submitting) their ratification instruments with the UN.

The Convention applies to international settlement agreements resulting from mediation that are concluded in writing by the parties (to the settlement agreement) to resolve a commercial dispute. Specifically excluded from the Convention’s scope are: settlement agreements concluded by a consumer for personal, family or household purposes; settlements relating to family, inheritance or employment law; court judgements; and arbitral awards. States may also exclude from the Convention’s application settlement agreements to which they or any of their governmental agencies are a party, by entering a reservation.

A settlement agreement is defined as “international” generally when at least two parties to the agreement have their places of business in different States. A settlement agreement is “in writing if its content is recorded in any form” including by electronic communication. Mediation is defined as “a process, irrespective of the expression used or the basis upon which the process is carried out, whereby parties attempt to reach an amicable settlement of their dispute with the assistance of a third person or persons (‘the mediator’) lacking the authority to impose a solution upon the parties to the dispute.”

Each State Party to the Convention is obligated to enforce a settlement agreement “in accordance with its rules of procedure and the conditions laid down in” the Convention. Normally a party seeking compliance with a mediated settlement agreement has to litigate the matter as a contractual dispute. Under the Convention, the party only needs to supply to the “competent authority” of the enforcing State Party where relief is sought, the agreement signed by the parties and evidence that the settlement agreement resulted from mediation; e.g., the mediator’s signature on the agreement or the administering institution’s attestation.

The competent authority of the enforcing State Party may refuse to grant relief if the party against which relief is sought furnishes proof, for example, of the incapacity of a party to the settlement agreement, its invalidity, or circumstances that raise justifiable doubts about the mediator’s impartiality or independence. Other grounds for denying relief are public policy or the subject matter not capable of mediated settlement under the enforcing State’s law.

The Convention was the negotiating work product of many countries with different legal, social, and economic systems. It necessarily represents compromise and sometimes constructive ambiguity. Importantly, the enforcement of settlement agreements does not depend on the seat of the mediation process (it can be online) or whether the process was formally labeled as mediation. The Convention’s impact will depend of course on how it is operationalized, especially as much relies on the enforcing State’s procedural rules. The Convention does not establish professional or ethical rules of conduct for mediators or the mediation process but references the applicable national standards. These standards may differ, particularly for conflict of interest. There is no definition of “competent authority” nor provision for Parties to indicate which is their national competent authority for Convention purposes. Moreover, businesses are able to contract out of the Convention in their commercial contracts.

The Convention’s impact also depends on how many more states ratify it. A big lacuna is that no EU country has signed the Convention as the EU has its own enforcement directive. Local mediators and mediation attorneys may take greater pride in their work knowing that mediation is gaining in international respectability, enforceability, and recognition. But the practical extent to which business clients can enforce settlement agreements by pursuing assets of non-compliant parties in Belarus or Fiji is questionable. Perhaps the biggest value and impact of the Convention is that its mere existence deters non-compliance with mediated settlement agreements.

 


Rosine M. Plank-Brumback is a Florida attorney, trade policy consultant, and Consulting Senior Fellow at Georgetown University’s Institute of International Economic Law. She is a member of the International Panel of Arbitrators of the International Centre of Dispute Resolution of the American Arbitration Association and is on the rosters of arbitrators under several international free trade agreements. She has held positions at the Organization of American States, the GATT Secretariat, the U.S. Mission to the European Communities, and the U.S. Foreign Agricultural Service.

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

Arbitration Case Law Update

February 2021
By: Donna Greenspan Solomon, Esq.

 

GE Energy Power Conversion Fr. SAS, Corp. v. Outokumpu Stainless USA, LLC, 140 S. Ct. 1637, 1642 (2020).  The United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards does not conflict with domestic equitable estoppel doctrines that permit the enforcement of arbitration agreements by nonsignatories.

Lavigne v. Herbalife, Ltd., 967 F.3d 1110, 1113 (11th Cir. 2020).  In deciding whether equitable estoppel is appropriate, courts must remember the purpose of the doctrine, which is to prevent the plaintiff from having it both ways. The signatory cannot, on the one hand, seek to hold the non-signatory liable pursuant to duties imposed by the agreement, which contains an arbitration provision, but, on the other hand, deny arbitration’s applicability because the defendant is a non-signatory.

Gherardi v. Citigroup Glob. Mkts., Inc., 975 F.3d 1232 (11th Cir. 2020).  Because arbitrators’ decision was an interpretation of the parties’ contract, in accordance with 9 U.S.C.S. § 10(a)(4), rather than an expansion of the arbitrable issues, the district court erred in substituting its own legal judgment).

EGI-VSR, LLC v. Coderch, 963 F.3d 1112, 1115 (11th Cir. 2020).  The Federal Arbitration Act implements the Inter-American Convention on International Commercial Arbitration (Panama Convention), which provides that a federal court must confirm an arbitration award unless it finds one of the following grounds for refusal or deferral of recognition or enforcement of the award: (1) incapacity or invalidity of the agreement, (2) lack of notice, (3) that the decision concerns a non-arbitrable dispute, (4) violation of the arbitration agreement or relevant law in carrying out the arbitration, (5) that the decision is not yet binding on the parties or has been annulled or suspended, (6) that the subject of the dispute cannot be settled by arbitration under the law of the State of recognition, or (7) that the recognition or execution of the decision would be contrary to the public policy (ordre public) of the State of recognition.

Ga.-Pacific Consumer Ops., LLC v. United Steel, Paper & Forestry, Rubber, Mfg., Energy, Allied Indus. & Serv. Workers Union, Loc. 9-0952, No. 20-10646 (11th Cir. Nov. 20, 2020)A federal court’s review of an arbitration award is extremely narrow.  Because the parties have contracted to have disputes settled by an arbitrator rather than a judge, they have agreed to accept the arbitrator’s view of the facts and the meaning of the contract.  The limited review of arbitral decisions “maintains arbitration’s essential virtue of resolving disputes straightaway.”  If the arbitrator arguably constructed the contract at all, the arbitrator’s construction holds, “however good, bad, or ugly.”

Young v. Grand Canyon Univ., Inc., No. 19-13639 (11th Cir. Nov. 16, 2020)University was precluded from enforcing a pre-dispute arbitration agreement with respect to a student’s breach of contract and misrepresentation claims because these claims constituted “borrower defense claims” under 34 C.F.R. § 685.300(i)(1), which, under Obama-era regulations, prohibited schools from entering into or relying on pre-dispute arbitration agreements and class-action waivers with students “with respect to any aspect of a borrower defense claim.”

Massa v. Michael Ridard Hosp’y LLC, 45 Fla. L. Weekly D1979 (Fla. 3d DCA August 19, 2020)Trial court erred by not holding evidentiary hearing prior to entering order compelling nonsignatories to employment agreement to arbitrate because there was no evidence that permitted trial court to compel nonsignatories to arbitrate their disputes, as nonsignatories disputed facts that would have permitted trial court to find otherwise.

Cooper v. Rehab. Ctr. at Hollywood Hills LLC, 45 Fla. L. Weekly D2384 (Fla. 4th DCA October 21, 2020).  An order compelling arbitration of the resident’s claims against the rehabilitation center was proper because the resident’s claims arose out of, or were related to, the contract, and any doubts as to the scope of the arbitration agreement were resolved in favor of arbitration. The center agreed to provide nursing care at the facility in return for payment and the resident’s claims arose out of failure to provide appropriate nursing care and to provide for her well-being after a hurricane; the resident’s entire relationship with the center was based upon their agreement, and her claims involved what she alleged that it failed to do in providing those services and protecting her.

Bailey v. Women’s Pelvic Health, Ltd. Liab. Co., 45 Fla. L. Weekly D2604 (Fla. 1st DCA November 18, 2020).  Trial court correctly limited itself to deciding only whether employer’s claim was subject to arbitration, without deciding merits of employee’s claim, because employee’s view of facts provided no cause for scuttling parties’ agreement to arbitrate any claims “arising out of or related to” their agreements.


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-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.

 

 

Zoom – The Best Thing To Happen To Mediation

January 2021
By: Mark Greenberg 

 

Two months ago, my colleague, Maxwell Christianson, wrote an article titled, “Zoom – The Worst Thing to Happen to Mediation.”  I respectfully disagree.

Our legal system accepts change slowly, and often begrudgingly. Video conferencing technology is a perfect example. Pre-COVID-19, I cannot think of any court that routinely allowed video conference attendance, other than criminal first appearances. Few, if any, Florida courtrooms even had the capacity for it.  COVID-19 changed all of that. Our court system adapted to COVID-19 by allowing video conference hearings, usually via the Zoom platform. Now both Judges and Attorneys are big fans of Zoom hearings, to the point that few expect courts to revert to only in-person hearings after the pandemic.  Attorneys have learned to conduct depositions remotely and mediations have occurred with the parties not “physically” present, some even thousands of miles apart. Our firm tracks our settlement rate and it is virtually identical (within 3 percentage points) between live and video mediations. Every mediator I have spoken to confirms the same; that Zoom is just as effective as live, in‑person mediations if cameras are on.  Only when people are calling in, effectively transforming video mediations into telephone mediations, do settlement rates

There are some differences with video mediations, however.  Zoom allows the parties to remain at home or their office, and in a more comfortable environment.  This lets them focus on the case, but as Max points out, does not require them to “invest” in coming to the live mediation.  Of course, with children at home for school and daycare limited, those with children find Zoom far more compatible to attending, rather than trying to arrange for safe child care in order to attend mediation. People are also far more comfortable at home than sitting inside a conference room  with masks on for hours at a time.   Max posits that in‑person mediations encourage the parties to stay longer, but I have found the opposite.  It is far easier to pause a Zoom mediation for 30 minutes in order for a parent to pick up a child, than to have them drive an hour from live mediation to do so and then expect them to return. Further, no out of town parties have to catch a flight, placing a hard stop on mediation.

Otherwise, the same factors influence mediation whether by Zoom or live.  Is there a trial date soon forcing a hard decision?  Have the parties spent enough money that they are tired of attorney’s fees and wish to settle?  Are the parties willing to compromise to move forward in their personal and/or business relationship?  Would the parties prefer a certain result or an uncertain verdict? Have the attorneys adequately prepared their clients for mediation, including what are the realistic case outcomes should they not settle?  None of these factors change when the parties are meeting by video conference as opposed to live.  Indeed, sometimes having parties who do not get along physically separated can lead to a better mediation, not worse.  Simply put, Zoom has allowed mediations to occur at different times, in different locations, and without the parties spending additional funds simply to attend.

With large corporations, video facilitates the actual decision maker participating in mediation, instead of a local representative who is less informed on the file. This is particularly true with surplus lines insurance companies who underwrite large risks nationwide.  With video mediation, the mediator can speak directly with the actual decision maker, read their facial expressions and body language, answer their questions, develop rapport, and often facilitate a quicker and easier resolution of the case. In contrast, with live mediations attended by a local adjuster, the real decision maker enters the picture when the mediator leaves the room and the attorney picks up the telephone to call home office.

Are there times in‑person mediation is better?  Of course. You cannot give a hug,  apology, shake hands, break bread, or share tears over video.  In cases where that will be of substantial assistance, in‑person mediation will be superior.  If there is a concern that one or more parties is unlikely to be paying attention to the mediation (despite being on video), then in‑person would be a much better choice. In the majority of cases, however, Zoom mediations have resulted in lower costs, less travel for everyone, and have the same settlement rates as live mediations. It is the best thing to happen to mediation.

 


Mark Greenberg is the founder of Breakthrough Mediation and Arbitration. He is a successful trial attorney with over 100 verdicts, while representing both Plaintiffs and Defendants. He has a rare combination of First-Party Insurance Coverage and Third-Party Liability experience, along with business disputes, construction defects, community association, and family law matters. Mark has successfully mediated numerous disputes saving parties over $20 million dollars in legal fees.

Mediating in the Age of the Corona Virus

December 2020
Author: Kenneth D. Stern

 

Most Mediators and litigators prefer to mediate in person, rather than by ZOOM.   However, I have mediated a number of cases virtually, because one party or attorney is concerned about the risks inherent in an in-person mediation, and you can rest assured that a ZOOM mediation can be just as effective in settling a case.  Most experienced Mediators are quite capable of conducting an effective virtual mediation.

With everyone on-screen, you can see the facial expressions, tone of voice, and much of the body language of everyone, and little is lost by mediating virtually.

Even if your client is not present with you in your office, a virtual mediation conference will enable you and your client to have confidential discussions, whereby you and your client can converse without the other side or even the Mediator hearing you.

A virtual mediation conference provides separate breakout rooms, permitting both or all attorney-client pairings to converse in total confidence and to caucus with the Mediator without the other side hearing or seeing you.  And of course, joint sessions can be had, with everyone present.  In addition, a virtual mediation can greatly reduce the costs of attending an in-person mediation.  It eliminates the expense of having clients, insurance adjusters, corporate counsel, and other corporate representatives fly in and generate the costs of airplane fare, hotel lodging, and meals attendant on many in-person mediations.

What are the technical requirements to participate

in a virtual mediation conference?

Don’t worry, the Mediator will do all the work to set up your virtual mediation.  In advance of the mediation date, the Mediator will advise you of which breakout room has been assigned to you and your client.  (I typically put the Plaintiff and his/her counsel in Breakout Room No.1,  the main Defendant and counsel in Breakout Room no. 2, and so on, if there are other parties.)   Your Mediator will send you an email containing: (a)  a link for you (and your client and any other representatives of your party, to use if they will not be present in your office) to click, to “check in” with ZOOM to join the session;  (b)  the Meeting ID and the PassCode which you and your client will need to enter to join the session, and (c) an “Activation Code” which you and your client will use to enter the Breakout room assigned to you both.

What if you can’t get sufficient hearing time to resolve objections

so that you can complete discovery before mediation?

Now that our Circuit Judges are resuming non-jury trials,  the number of time slots available for hearings on motions will diminish, perhaps almost to the point of evaporating, as our Judges try to reduce the backlog of cases that did not settle at mediation.  You have options here, and you may want to use a combination of them.  Be creative: try to get agreement on pending motions or on issues therein;  try to reduce a long motion so that it can be dealt with at a UMC;  and stipulate to matters that are not in serious dispute.

If you have a slew of motions raising objections or discovery issues that have to be ruled upon before you can depose witnesses or the opposing parties, try to get your opposing counsel to agree to using a Special Master;  that way, you can arrange to have all discovery issues heard and tentatively ruled upon.   The Special Master will send a Report and Recommendations to the Judge, and both parties will have the opportunity to file Exceptions.  Usually, these are few, and the Judge can then enter rulings on every discovery issue which was not excepted to;  this can save many months of frustration.

In one case in which I served as a Special Master, the Judge had advised the attorneys that it would take 12-14 months to have all the preliminary discovery issues heard and resolved.  After receiving and reviewing all the pending motions to compel, objections, assertions of privilege, etc., I then conducted two days of back-to-back hearings, some evidentiary with testimony, and filed a 51-page Report and Recommendations.  Only one counsel filed Exceptions, and these were few. The Judge entered her rulings, adopting all of the recommendations that were not objected to, and considering the few others in light of the Exceptions filed.  More than a year was saved in resolving all these motions and the issues raised;  the expense of holding all hearings before a Special Master, while not small, was far less expensive than 14 months’ worth of hearings would have cost.  And the parties could now proceed to take all the depositions which had to await the resolution of these issues.

Corona Virus be Damned:  Full speed ahead!

Virtual mediations, like virtual hearings and even virtual nonjury trials, are now a part of the fabric of legal practice.  And even if there are no concerns about the virus, virtual mediations are increasingly being used to save the expenses of everyone flying in to attend in person.  Don’t hesitate to avail yourself of this worthwhile alternative to in-person mediations.


Kenneth D. Stern is a retired Circuit Judge who served here in the Fifteenth Circuit.

Prior to becoming a Judge, he was a Trial Attorney with the U.S. Department of Justice, and an Assistant U.S. Attorney here in the Southern District of Florida.  He then moved to Palm Beach County and practiced both federal and state litigation, before being appointed to the Bench by Governor Jeb Bush.  Since his retirement from the Bench, Judge Stern has been serving as a Florida Supreme Court Certified Circuit Mediator, AAA-approved Arbitrator, and Special Master.  He can be reached at kdstern@gmail.com or (561) 901-4968.

Zoom – The Worst Thing to Happen to Mediation | Opinion

November 2020
Author: Maxwell M. Christiansen

 

COVID-19 has obviously changed the way people handle business. These days, we stay away from each other if we can. Why? Because it has been recommended by the CDC and virtually all our elected officials. Society expects distance. If we don’t absolutely need to have that meeting in person, it’s going to be over Zoom or some other video conferencing service. Some businesses have been meeting this way for a while, but for most this is the new normal, and we don’t really have a choice. So it begs the question: do we accomplish as much over Zoom?

For mediations, I believe the answer to that question is sadly, “no.” Zoom mediations do not work as well as mediations in person. Zoom is great for certain meetings where the convenience of meeting from anywhere in the world outweighs the interpersonal benefits of meeting in person. Depending on the goal of the meeting, it may not be as important to physically be together in the meeting. That is not the case for mediations. Last year, if I asked a colleague how his mediation went, there was over a 50/50 chance that he would say, “it settled!” The most common answer I get these days is, “Impasse.” As a litigator during the pandemic, I have not yet personally witnessed or even heard of a successful Zoom mediation, and the reason is obvious: the parties are not physically coming to the table.

There are two major reasons why being actually present at the negotiation table facilitates a mediation, 1) the parties are physically confined in one location with each other, and 2) they invest a significant amount of energy to attend mediation.

Confining the parties in one location for mediation has been shown to be a major factor in reaching settlement. Most mediators will recommend the parties not leave the mediation if a resolution appears possible. If the mediation runs long, the mediator may even suggest everyone eat dinner at the mediation. Mediators know the parties’ willingness to settle deteriorates when they pause the negotiation, even for half an hour.

The change of setting is also important. Even if the parties choose not to meet in the same room, but instead in neighboring rooms (against the mediator’s advice), both parties still physically come to the negotiating table. Typically, the parties arrive at a neutral location. In doing so, they exit their element and enter the mediation. The setting of an in-person mediation reminds the parties that the other is there too, nowhere else, and for the same reason – to leave the dispute in the past. They understand that they are together for a brief moment, and that is their chance to try to smooth things over, ask for what they want, make concessions in return, and explain their reasoning. Open, honest, and effective communication is very important to a successful mediation. Lay everything out on the table, listen to the other side, ask for what you need to reach an agreement, and see if you can get there with compromise.

Such communication may be harder to achieve over Zoom because the interpersonal atmosphere is reduced to staring at a computer screen. With Zoom, the parties simply open their laptops from home or the same office from which they have been managing their lawsuit, and their mind may still be in “litigation mode.” It feels like just another conference call about the case. The opposing party is just another box on their screen that they can turn off if they want. Some thoughts may arise: “Who else is in the room on the other side? What do they have on their desk that we don’t have here?” The parties’ temporary trust for each other can become strained, and in the end, the symbolic handshake is not possible.

Mediations in person also require the parties to make a substantial effort to actually meet. By showing up, they level with each other before mediation even starts. If the mediation is voluntary, the parties mutually decide to invest their time to travel to the mediation to consider the other party’s perspective on the case, usually with the understanding that mediation could last a while. The parties both cancel most of their other activities that day, and the process itself is a major investment of energy. That investment has a particular psychological effect on the parties that can cause them to shift away from dispute and towards resolution. They made the effort and they want it to pay off.

In contrast, parties to a Zoom mediation do not invest enough energy to trigger that binding psychological effect. It is far easier to end the mediation over Zoom. The parties do not need to get up and leave the building, they simply need to click “Leave Meeting,” and the mediation impasses.

It is therefore my opinion that mediation is not as effective over a Zoom call. Moving forward, I urge my colleagues to confirm whether their clients want to mediate over Zoom, or whether wearing the mask and keeping a six foot distance in a room is satisfactory.


Attorney Maxwell M. Christiansen was born and raised in the Palm Beaches. He graduated from Emory University, where he earned a Bachelor of Science in 2012, majoring in Neuroscience & Behavioral Biology and minoring in Mathematics. Max graduated from the University of Florida Levin College of Law in 2016 with a Juris Doctor and Certificate in Intellectual Property. Max is an associate business attorney at The Law Offices of Paul J. Burkhart and litigates various business disputes on behalf of corporate clients, including breach of contract, fraud, construction, and Internet defamation claims. Notably, Max has successfully removed from various websites, such as Google, damaging and untrue reviews posted anonymously on the Internet.