Published: October 2023
Written by: Mark Greenberg

As attorneys, your role in mediation is pivotal to achieving a favorable outcome for your client. To facilitate a successful settlement, it’s essential to provide comprehensive and accurate information to the mediator.  This Mediation Summary Outline will guide you in providing the material to ensure a productive mediation, resulting in a more likely settlement for your client.  

1. Case Information:

• Case Name: Clearly identify the case being mediated.
• Trial Date: Specify the trial docket, and for state court if this is an actual trial order or estimated date from a case management order.
• Trial Venue: Indicate the location where the trial is set to take place.
• Judge: Mention the presiding judge overseeing the case.
• Jury or Non-Jury: State whether the trial is jury or bench.

2. Type of Case:

• Describe the nature of the case, including legal issues and claims involved.

3. Attorney’s Fees:

• Specify whether attorney’s fees are a significant concern in the case.

4. Negotiation History:

• Most Recent Demand and Date: Share the most recent settlement demand and the date it was made.
• Most Recent Offer and Date: Provide the most recent settlement offer and the date it was extended.

5. Case Summary:

• Present a concise overview of the case, including key facts, legal arguments, and the current status of litigation.

6. Key Case Factors:

• Strengths: Highlight your client’s strongest arguments or evidence that favor their position.
• Weaknesses: Acknowledge any aspects of the case that might be challenging or unfavorable to your client.
• Opposing Side’s Strengths: Identify the opposing party’s most compelling arguments or evidence.
• Opposing Side’s Weaknesses: Note any vulnerabilities or weaknesses in the opposing party’s case.

7. Client’s Settlement Objectives:

• Clearly state your client’s goals for settlement, including desired outcomes beyond monetary compensation.

8. Verdict Range:

• What is your client’s best day in court?
• What is your client’s worst day in court?
• What are the realistic range of verdicts?
• Availability of Similar Case Verdicts: If applicable, share information on past verdicts for cases similar to yours.

9. Discovery Status:

• Describe significant discovery completed and highlight any pending or outstanding discovery.

10. Trial Cost Estimate:

• Provide an estimate of the potential cost to your client if the case proceeds to trial.

11. Critical Motions and Rulings:

• Identify any critical motions, like Daubert challenges or motion for summary judgment, that may affect the case outcome. Note any rulings issued thus far.

12. Important Settlement Terms:

• Detail any unique settlement terms that may be of interest to your client, such as confidentiality agreements, non-compete clauses, or non-disparagement provisions.

13. Additional Concerns:

• Address any other issues or concerns that could impact the settlement process or case resolution.

14. Communication with Mediator:

• Indicate whether you’d like to speak with the mediator before the mediation session.

15. Supporting Documents:

• Gather and provide relevant documents, such as contracts, expert reports, photographs, repair estimates, HOA documents, and other evidence to help the mediator fully understand the case.

In conclusion, successful mediation hinges on effective communication and thorough preparation. By providing the mediator with a comprehensive Mediation Summary Outline, you lay the foundation for a productive negotiation process that can lead to a mutually acceptable settlement. Remember, your input as attorneys plays a vital role in shaping the mediation’s success and achieving a favorable outcome for your clients.

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

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

Published: September 2023
Written by: Adam Myron

If you’ve ever tried to get a six-year-old to eat vegetables, you know that children can be masterful negotiators.  I know I’ve had the following conversation many times:

“You have to eat all your carrots and broccoli.  No ice cream until you do.” 

“I can eat all that. I’ll eat three carrots and two pieces of broccoli.”

“Fine, just eat already.”

“And I want two scoops of ice cream.”

“Don’t push your luck…”

Everyone’s interests are met in these negotiations.  Here, my interest in ensuring my child eats vegetables is met, even if it comes at the cost of replacing a few vegetables with a little ice cream.  My child’s interests in getting dessert and not eating too many vegetables are met, at the mere cost of having to eat a few vegetables.  Everyone is a winner.

The frequency of such negotiations with my own children got me wondering: How do some human beings develop effective negotiation skills at an early age?  Fully answering that question would likely require a much more complicated and lengthy discussion than the space limitations of this article will allow.  However, I suspect that at least part of the answer lies in the fact that the stories, fables, and parables that parents and other caregivers tell children include morals and lessons that mirror the foundational principles upon which effective negotiations are built.  Consider the following examples.

In The Boy Who Cried Wolf, a mischievous child tasked with notifying neighbors of threats to the village gets a good laugh by sounding multiple false alarms of “wolf” until the day that an actual wolf appears and no one believes his cries to be true.  The result: happy wolf; not so happy boy.  Through this story, children learn the importance of building and maintaining trust, a key ingredient to an effective negotiation.  It may seem obvious, but if you fail to build trust with your negotiating partner (I use the term negotiating “partner” because I believe it’s counterproductive to think of that person as an adversary), you are much less likely to achieve as good of a negotiated outcome as you would have achieved if your partner had confidence in the accuracy and veracity of the information and perspectives you conveyed during the negotiation.

In The Tortoise and the Hare, a steady and persistent tortoise wins a footrace against an overeager and easily distracted hare.  The morals embedded in The Tortoise and the Hare are useful to remember at the negotiating table because negotiating is an arduous task.  It can take a lot of time, and it works best when the parties are focused and do not rush. 

In The Lion and the Mouse, the king of the jungle steps on a thorn.  He roars and howls with pain until a mouse, who could easily take advantage of the situation by leaving the lion to his misery, instead pulls the thorn from the lion’s paw.  Through an act of kindness, the mouse gains a powerful lifelong friend. The Lion and the Mouse teaches children the values of trust, empathy, and compassion.  When those values are put into practice during the negotiation process, negotiators are better able to understand perspectives that differ from their own; and, by putting themselves in the shoes of their negotiating partners, they can better understand the interests and incentives that will facilitate better-negotiated outcomes.

The Lion and the Mouse also serves as an excellent example of how to overcome a cognitive bias known as the fundamental attribution error, which is the tendency to explain other people’s behavior by placing too much emphasis on internal dispositional factors and too little emphasis on external situational factors.  In the story, the mouse has to overcome the urge to ascribe the lion’s roaring to a fierce aggressive disposition and consider that the lion’s behavior was the result of some external cause (specifically, stepping on a thorn).  Resisting that urge opened a pathway to compassion and empathy, which resulted in a positive outcome for both the lion and the mouse.

We navigate life by constantly negotiating.  Sometimes, negotiations are with other people (how do you and I resolve our conflict?), sometimes they’re with the environment (how do I get from point A to point B?), and sometimes they’re with ourselves (how will I reward myself later for hard work I do now?).  Often, we negotiate with those to whom we owe the greatest duty of care: the next generation of children who one day will be the stewards of the planet.  So although it might result in a few less vegetables and a little more ice cream eaten at suppertime, I’m still glad that the fables and stories we tell children are grounded in principles for future success.

Adam Myron is an attorney with the law firm of Cagnet Myron Law, P.A., where, as a Florida Supreme Court Certified Circuit Mediator and a Florida Qualified Arbitrator, he focuses a large part of his practice on alternative dispute resolution.  Adam is also a civil litigator in the fields of complex business litigation, trust & estate litigation, and professional liability litigation. You can email Adam at [email protected] and learn more about him by visiting https://cagnetmyronlaw.com/about/attorneys/adam-myron/.

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

Published: July/August 2023
Written by: David Lucey

Zoom and Other Remote Technologies for Mediation

Since the start of the pandemic many mediators have become accustomed to conducting mediation remotely. Opinions differ about the effectiveness of remote mediations as opposed to in-person depositions, but remote depositions certainly save time and money for all concerned.

Effective October 1, 2022, under Florida Rule 1.700(a), all mediations in a State Court case will be in person unless the parties stipulate to appearing remotely, or if there is a motion by a party or by the court itself to allow remote mediation. See Fl. Sup. Ct. Admin. Order 21-990 that amended Rule 1.700.

All notices of mediation should specify if the mediation is in person or remote. If the mediation is remote the Notice of Mediation should state that all parties have stipulated or that it has been so ordered by the Court. The Notice of Mediation should NOT include the Zoom information for security purposes. Rather, the mediator should send that information to the participants by separate email.

Mediators should also review Florida Rule of Civil Procedure 1.730. That rule allows signatures to be manual, by fax, electronic and in counterparts; rather helpful in remote mediation. Rule 1.730 ( c) provides that a party cannot object to a mediated agreement on the grounds that mediation was conducted remotely. Nonetheless, I suggest that a mediation agreement include standard language stating that all parties agreed to remote mediation and that they had access to advice of counsel or the opportunity to consult counsel.

Unlike the Florida Rules of Civil Procedure, the United States District Court for the Southern District of Florida takes the opposite approach. Under Local Rule 16.2(a) the parties decide if they want to mediate in person or remotely and, if they cannot agree, the mediation shall be by video conference. That Local Rule also provides that if there is not an agreement the mediator’s report must state if the mediation was in person or by video conference. Please note that Local Rule 16.2 (e) requires participants to appear by BOTH video and audio; just calling in on the phone will not suffice.

Important Proposed Revisions to Rule 10.340

All mediators should review the proposed changes to Rule 10.340 available in full at;
https://www.flcourts.org/Resources-Services/Alternative-Dispute-Resolution/Training-Information/DRC-CME-Programs

This website provides an overview of some modifications to Rule 10.340 that the Committee on ADR Rules has proposed but that are not enacted.

The proposed changes would expand and provide specific definitions and examples of “Clear Conflict of Interest” i.e. conflicts that cannot be waived. Specific prohibitions include;

It is a clear conflict if the mediator, the mediator’s spouse or domestic partner is related by blood, adoption or marriage within the third degree of relationship to one of the mediation participants or a participant’s spouse or domestic partner;

The Mediator is prohibited from serving in any matter where the mediator has ever previously provided non-mediation services for or represented one of the mediation participants in the matter at issue or the mediator is currently providing non-mediation services or representing any mediation participant.

The above language proposal does not define “mediation participants”. However, Florida Statutes 44.403 (2) and (3) define “Mediation participant” and “mediation party” to only include parties to a lawsuit, and not counsel for a party. Therefore, mediators should remain free to receive repeat engagements from law firms and law firms remain free to repeatedly engage mediators who they trust.

The lack of any time limit in the proposal would mean that if a mediator had ever worked directly for a company such as State Farm Insurance, in any capacity, he/she may be prohibited from ever serving as a mediator in any matter where one of the parties is State Farm itself, and could be interpreted to prohibit the mediator from serving in a case where State Farm is the insurance company for any party. However, if the mediator had represented State Farm or a State Farm insured purely as an attorney, it appears that the prohibition would not apply. If this proposal is ever passed, we can expect the state courts, and likely the Florida Supreme Court, to clarify these questions.

Closing Thoughts

In addition to the obvious need to keep current on rule changes and updates, all mediators should be sure to include standard language in their retainer agreements, notices of mediation and draft mediation agreements that confirm that the mediator has disclosed all applicable rules to the participants, that the participants are aware of those rules, and that the mediator and participants have all acted in accordance with such rules. A few hours of careful drafting before a mediation engagement can avoid an enormous amount of trouble later.

David Lucey has been a member of the Florida bar since 1990 and a Florida Supreme Court certified circuit court mediator since 2009. Mr. Lucey’s practice, as both Attorney and Mediator, encompasses multiple areas, including civil, litigation, family law, and condominium/homeowners’ association law. Mr. Lucey is available at 561-632-6921 or [email protected].

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

Published: June 2023 
Written by: Donna Greenspan Solomon

Prof’l Airline Flight Control Ass’n v. Spirit Airlines, Inc., 65 F.4th 647 (11th Cir. 2023).  Under Railway Labor Act, a minor dispute that parties cannot resolve is subject to arbitration before adjustment board created by airline and its employees.

Landcastle Acquisition Corp. v. Renasant Bank, 57 F.4th 1203 (11th Cir. 2023).  In arbitrations governed by the Federal Arbitration Act, courts look at whether arbitration agreement signed by agent is binding on the principal.

Warrington v. Rocky Patel Premium Cigars, Inc., 2023 WL 1818920, at *2 (11th Cir. Feb. 8, 2023).  Order denying motion to compel arbitration was affirmed where appellant “substantially invoked the litigation machinery prior to demanding arbitration.”

Communications Workers of Am. v. BellSouth Telecommunications, Inc., 2023 WL 2401327, at *3 (11th Cir. Mar. 8, 2023).  Where an arbitration provision is broad, courts should look for an “express provision excluding a particular grievance from arbitration”; otherwise, “only the most forceful evidence of a purpose to exclude the claim from arbitration can prevail.”

Corporacion AIC, SA v. Hidroelectrica Santa Rita S.A., 20-13039, 2023 WL 2922297 (11th Cir. Apr. 13, 2023).  In New York Convention case where arbitration is seated in the United States, or where United States law governs the conduct of the arbitration, Chapter 1 of the FAA provides the grounds for vacatur of an arbitral award.

Calvary Chapel Church, Inc. v. Happ, 353 So. 3d 649 (Fla. 4th DCA 2023).  School’s enrollment contract contained arbitration provision requiring arbitration of wrongful death action brought by parent whose child had died by suicide.

Lennar Homes, LLC v. Wilkinsky, 353 So. 3d 654 (Fla. 4th DCA Jan. 4, 2023).  Arbitration clause requiring arbitration for personal injuries “in the Community” required homeowner to arbitrate action against real estate developer for injuries in bicycle accident on road in community.

GR OPCO, LLC v. Murillo, 352 So. 3d 1279 (Fla. 3d DCA 2023).  Substantial competent evidence supported trial court’s finding that employee did not sign employer’s arbitration agreement and that therefore, no arbitration agreement existed.

Oana v. Solomon, 357 So. 3d 280 (Fla. 2d DCA 2023).  Where order approved arbitration award without entering final judgment but also authorized receiver’s sale of real property, the appellate court lacked jurisdiction to review the arbitration award but nevertheless had non-final jurisdiction to review the order as to the approval of the receiver’s sale of the property.

Erb v. Chubb Nat’l Ins. Co., 47 Fla. L. Weekly D2635 (Fla. 3d DCA Dec. 14, 2022).  Insurer waived its right to arbitrate by failing to timely invoke arbitration provision.

Ron v. Parrado, 48 Fla. L. Weekly D413 (Fla. 3d DCA Feb. 22, 2023).  Party may compel arbitration of agreement not containing arbitration clause if agreement incorporates a different agreement which does contain an arbitration provision.

Vitesse, Inc. v. Mapl Associates LLC, 48 Fla. L. Weekly D618 (Fla. 4th DCA Mar. 22, 2023).  Any scrivener’s error in seller’s motion for trial de novo was trivial and did not substantially impair either purchaser or trial court from having reasonable notice of seller’s desire to proceed to trial, and thus seller’s motion substantially complied with statute governing court-ordered nonbinding arbitration and rule governing motions for trial de novo.

Costa v. Miami Lakes AM, LLC, 2023 WL 2777524, at *3 (Fla. 3d DCA Apr. 5, 2023).  Non-signatory to arbitration agreement may compel arbitration of claims brought by signatory based on doctrine of equitable estoppel if signatory raises allegations of concerted misconduct by both non-signatory and one or more of the signatories to the contract; evidentiary hearing required on remand.

F.R. Aleman & Associates, Inc. v. EAC Consulting, Inc., 2023 WL 2777505, at *1 (Fla. 3d DCA Apr. 5, 2023).  Appellate court affirmed trial court’s confirmation of arbitration panel’s fee award where record contained competent, substantial evidence supporting court’s determination that the parties expressly agreed to have the arbitration panel adjudicate the attorney’s fees issue.

City of Miami v. Fraternal Order of Police, Miami Lodge No. 20, 2023 WL 2777479 (Fla. 3d DCA Apr. 5, 2023).  Police officer waived right to arbitrate grievance challenging his termination for violation of drug policy where officer actively participated in previous litigation that had already determined issues contained in grievance.

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 National Academy of Distinguished Neutrals and serves as a Chair on AAA (Commercial Panel) and FINRA arbitrations.  She is also a Certified Circuit, Appellate, and Family Mediator and Florida Supreme Court Qualified Arbitrator.  Donna is also 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 [email protected] or by visiting www.solomonappeals.com. 

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

Written by: Alfred A. LaSorte, Jr.
Published: May 2023

The pandemic is finally over (more or less) and law practice has moved to the “new normal,” where working from home is an option, but many lawyers have moved back to their firms’ offices. Where does Zoom mediation fit in this new normal?

We all got dragged into the Zoom age three years ago (some, kicking and screaming) as the pandemic wreaked its havoc.  But within the past year, with restrictions loosened, in-person mediations have made a comeback of sorts.  Today they constitute perhaps 20% of my mediations.

Initially, Zoom had a learning curve.  My first mediations on Zooms seemed less effective than those in-person.  Some people were frustrated by their inability to read opponents’ body language across a web cam and computer monitor.  From 2020 through 2022, all but a few of my mediations took place on Zoom, but not by choice.  We all just made do with Zoom, as in-person conferencing simply wasn’t an option.

Over time, people became more accustomed to doing business via teleconference, and Zoom mediations improved, at least in my anecdotal experience. I’d say that at this point, Zoom mediations are just about as  effective and successful as those held in-person.

We’re all familiar with Zoom’s drawbacks – the lack of true, face-to-face negotiation, distractions allowing participants from home to zone out and lose focus. (I’ve seen parties – and lawyers – called away from their webcams mid-mediation by everything from barking pets and crying babies to laundry chores.)

Zoom does have unquestionable benefits, though.  Its screen sharing feature makes doc presentations easy.  Scheduling is easier as well – that insurance adjuster in Nashville no longer needs travel arrangements for two days out of the office, just an internet connection and webcam. Participants appreciate being able to join in from their homes or offices, or those of their counsel. It can be much less expensive as well, without the need for any travel.  And counsel attending via their office computers, with easy access to their staffs, makes preparation and circulation of settlement docs convenient and quick.

So, which should you choose for your next mediation – in-person or Zoom?

In federal cases, Zoom is the court’s preferred method. The most recent version of Southern District of Florida Local Rule 16.2, “Court Annexed Mediation,” amended last October, provides that if the parties cannot agree on whether to conduct a mediation in-person or via video conference, it takes place via video conference. “Unless the Court orders otherwise, the parties shall decide whether their mediation conference will be conducted in person or by video-conference and, if the parties cannot agree, the mediation conference shall be held by video-conference.” S.D. of Fla. Local Rule 16.2(a)(2)

State court rules show an opposite preference, namely, that mediation take place in person unless the parties stipulate to (or the court orders) a video conference. See FRCP 1.700(a): “Absent direction in the order of referral, mediation or arbitration must be conducted in person, unless the parties stipulate or the court, on its own motion or on motion by a party, otherwise orders that the proceeding be conducted by communication technology or by a combination of communication technology and in-person participation.”

In most cases, I prefer Zoom.  I’m happy to handle in-person mediations when parties and counsel prefer. But I’m reluctant to give up Zoom’s many conveniences.  In nearly every mediation I find the parties sharing pleadings, case law and documentary evidence on screen. Many of my mediations involve real estate disputes.  In a boundary dispute, for example, there is no better aid to analyzing a case’s strengths and weaknesses than sharing online aerial photos, depicting the locations of hedges, fences, etc., over time.  Zoom’s share screen feature is perfect for this.

The same is no doubt true in contested liability auto accident cases, for example, where accident scene and vehicle damage photos can be assessed together on everyone’s screens.

On the other hand, with Zoom you do lose a bit of the “feel” for other participant’s body language and other subtle clues to what they’re thinking that only a face-to-face conversation provides.  In some cases, this could be the deciding factor as to whether to select Zoom for your mediation or not.  But, in my experience, what you gain with Zoom usually outweighs what you lose.

Now that in-person mediation is back on the table as an option, consider the benefits and disadvantages of both alternatives and pick whichever is the best fit for your clients’ and your cases’ needs. And then go settle your case!

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 (over 400 cases so far) 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 [email protected].

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

Written by: Alex Romano
Published: April 2023

Dispute Resolution is a great career choice but transitioning to mediation isn’t as flawless as it seems.

At Matrix Mediation (“Matrix”), we have seen numerous attorneys attempt the transition to mediation without knowing what goes into making a successful practice. From believing common misnomers about the work effort required to failing to financially plan for the transition period, we dare to say we have encountered it all in our seventeen (17) years in operation when it comes to planning for life as a mediator. 

This article navigates through the process of successfully transitioning your practice from litigation to mediation and highlight some key considerations to keep in mind before taking the plunge. 

Evaluating your Finances Before the Transition

One of the most common misconceptions we hear is that the money comes quick as soon as you become a mediator. However, for many, that is not the case. Instead, we have experienced that it takes about one (1) to two (2) years for a mediator’s business to take off from occasional mediations to full time work regardless of their prominence as an experienced trial lawyer or judge.

As such, it is important to evaluate your finances and plan accordingly before transitioning to mediation. This includes (i) evaluating your savings, (ii) budgeting for necessary business expenses, (iii) taking into consideration the timing of when you leave your practice and (iv) considering future life events that might impact your financial plan.

Should I keep practicing and mediate?

We are often asked – can I keep litigating with a mediation practice? Legally and ethically, yes. However, it is important to keep in mind that keeping your practice will lead to a greater likelihood of conflicts of interest. Also, would you trust your secrets with a mediator you may have a case against next month? Here at Matrix we are frequently asked if mediators are still practicing.

Network, Network, Network

When you’re not fully booked you should be spending your time seeking mediation opportunities. This includes reaching out to old classmates and every person you have ever litigated with or against and asking for a chance to mediate their next case. We have time and time again seen that the mediators that take this advice see profound results in the quality and volume of their practices.

Does that mid-week happy hour or Saturday night legal event on your calendar bring you dread? Well, to build an established mediation practice it will now be your full-time job to meet as many people as you can and get your name out. If attending networking events isn’t your style, then consider getting involved with various bar organizations to help you network in a more organic setting.  

The Price is Right

You may an experienced trial attorney, but you’re a new mediator. Consider choosing a price point that encourages new clients to try you out, get a book of business, and then you can set your rate higher. Many new mediators often respond with “I have never looked at how much a mediator charged why should I start low?” To build your business, you have to get business, which starts with offering reasonable rates commensurate to your experience in the field. 

Calling Ahead & Following Up

Not everyone calls ahead, so it will set you apart from the pack.  It provides the attorney with the opportunity to tell the mediator things they might not want to put in writing, can offer valuable insight into the position of each party before mediation occurs and can establish your relationship with a client before the mediation even begins.

Follow-up on impassed cases. The mere fact that you called will keep that case in the forefront and help with an earlier resolution. Although your time is important, consider not charging for follow-up, which helps keep things more fluid. In our experience, if you give a few minutes away for free, it will pay dividends. 

Final Thoughts

Mediation is your new full-time career, not a retirement hobby; Results require effort, focus and perseverance. As clients expect more than they ever have before, it is more important than ever to put in the effort and concentration that clients not only deserve but expect.

Concerned about the competition in the field? Don’t be. Every day we get feedback from practitioners that their favorite mediator is booked, and they are looking for new blood. If you are willing to give your best effort you will find that dispute resolution is a rewarding and satisfying career.

Alex Romano is a Director at Matrix, a full-time mediator, and trainer at Matrix Training Institute. Prior to coming on as a mediator she did over 50 jury trials and has worked at Matrix for 17 years in various capacities. She has an extensive understanding about not only what it takes to be a successful mediator, but the nuts and bolts of how to run a successful mediation practice on a large scale. 

Written by: Kenneth D. Stern 
Published: April 2023

There is a key to resolving cases that should be central to your efforts.   Often, we have a client, or opposing party,  who is so immersed in resentment and anger because of the dispute in which s/he is involved,  that s/he is incapable of addressing the situation which is the focus of the dispute.   Or we have an opposing counsel who postures, instead of discussing the issues.

The most common problem with such situations is that the person unable to focus on the situation to be resolved is  preoccupied with the emotional perception that s/he has been, or might be, outfoxed by the opposition.   Such a situation cries out for you to dip into your bag of interpersonal tactics and heed my favorite definition of all time:  “Diplomacy is the art of letting the other person have your way.”  This begins with explaining that the person’s own self interest is being disserved by not concentrating on what s/he really needs, which is getting the situation to yield what s/he wants.       

If the problematic person is your client, you must pierce the emotional cocoon that your client has woven, by sympathizing with his or her feelings,   then to point out that s/he shares a situation with the opposing party which has to be sensibly resolved.    Help your client to realize that the best way to make the harsh feelings and resentments disappear is to recall the last time your client and the opposing party were dealing with one another in a civil, cooperative way.

Do what you can to bring the client’s focus to that period, and get him or her to acknowledge that they once were able to deal with one another for their mutual benefit.   Then, urge your client to recall what occurred to create the dispute that now exists.  Although it is likely that your client will seek to blame the deterioration of their relationship on the opposing party, point out that the client’s self interest would best be served by resolving the matter, not by prolonging the dispute.

Help your client to identify what actions and concessions by both sides would defuse the anger and resolve the situation.  Urge the client to focus on what should be asked of the opposing side to help resolve the dispute. This will help you to formulate your comments to the other party during the joint opening session, after the mediator concludes his or her remarks and invites the attorneys to describe to the other side how they see the case,  and how they suggest a settlement could be reached. [1]  

If your opposing counsel is a reasonable person interested in settling the case to his client’s satisfaction, you might, prior to the  mediation date, suggest a resolution based upon fostering in both clients the perception you and your client have achieved during your discussions.

If the stubborn person is the opposing party,  your tactics would be shaped by the nature of that party’s attorney.   If the attorney is plagued by the client’s obstinacy and is having difficulty getting the client to address the situation objectively,  you might tell the attorney (regardless of whether it is true) that you had the same problem with your client,  and that you  used with your client the same approach you are suggesting he or she use with his or her client.

Finally, there is the situation where the problematic person is your opposing counsel.  Once in a while, the attorney on the other side is a “hot dog,” whose modus operandi consists of arm waving, posturing, and threatening.   If you can, convince opposing counsel that his/her client will be well-served, and will appreciate the attorney’s work, if a satisfactory solution can be created to allow both parties to put this situation behind them,  and to get on with their lives.  If that doesn’t motivate him or her to foster a settlement, appeal to the attorney’s self interest: stress that a happy client will return with more business, but if the case languishes for months, with attorneys’ fees mounting, the client will not likely return with more business or recommend him to others.

If your efforts do not produce a conciliatory attitude, call the mediator and explain that there’s a problem that you would appreciate his/her addressing at the mediation.   Explain who’s the problem and what you would like the mediator to do, either in his opening statement (if there will be one), or in caucus.  An experienced mediator can do wonders.  (See article, “Recruiting the Mediator as Your Ally,” in the ADR Corner column in the  PBCBA Bulletin of April 2017.)

————————————————————————————————————————————————————————————————————————————–

Since his retirement from the Circuit Court bench, Judge Stern has served as a Mediator in Circuit Civil, Family, appellate and federal cases.  He also serves as an Arbitrator (AAA approved), and as a Special Magistrate, helping to move cases toward resolution by hearing motions which have been languishing on crowded court dockets.   Judge Stern may be reached at [email protected] or 561-901-4968.

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

[1]  When mediating a case, I strongly urge the attorneys to agree to such a joint session, wherein either attorney is urged to speak calmly and respectfully to the other party.  Such a joint session often helps to shorten the time needed for mediation, because it helps to identify the key issues that need to be addressed, and often defuses the anger the opposing parties so often feel toward one another.

Written by: (Ret.) Judge Kenneth Stern
Published: March 2023

There is a key to resolving cases that should be central to your efforts.   Often, we have a client, or opposing party,  who is so immersed in resentment and anger because of the dispute in which s/he is involved,  that s/he is incapable of addressing the situation which is the focus of the dispute.   Or we have an opposing counsel who postures, instead of discussing the issues.

The most common problem with such situations is that the person unable to focus on the situation to be resolved is  preoccupied with the emotional perception that s/he has been, or might be, outfoxed by the opposition.   Such a situation cries out for you to dip into your bag of interpersonal tactics and heed my favorite definition of all time:  “Diplomacy is the art of letting the other person have your way.”  This begins with explaining that the person’s own self interest is being disserved by not concentrating on what s/he really needs, which is getting the situation to yield what s/he wants.       

If the problematic person is your client, you must pierce the emotional cocoon that your client has woven, by sympathizing with his or her feelings,   then to point out that s/he shares a situation with the opposing party which has to be sensibly resolved.    Help your client to realize that the best way to make the harsh feelings and resentments disappear is to recall the last time your client and the opposing party were dealing with one another in a civil, cooperative way.

Do what you can to bring the client’s focus to that period, and get him or her to acknowledge that they once were able to deal with one another for their mutual benefit.   Then, urge your client to recall what occurred to create the dispute that now exists.  Although it is likely that your client will seek to blame the deterioration of their relationship on the opposing party, point out that the client’s self interest would best be served by resolving the matter, not by prolonging the dispute.

Help your client to identify what actions and concessions by both sides would defuse the anger and resolve the situation.  Urge the client to focus on what should be asked of the opposing side to help resolve the dispute. This will help you to formulate your comments to the other party during the joint opening session, after the mediator concludes his or her remarks and invites the attorneys to describe to the other side how they see the case,  and how they suggest a settlement could be reached. [1]  

If your opposing counsel is a reasonable person interested in settling the case to his client’s satisfaction, you might, prior to the  mediation date, suggest a resolution based upon fostering in both clients the perception you and your client have achieved during your discussions.

If the stubborn person is the opposing party,  your tactics would be shaped by the nature of that party’s attorney.   If the attorney is plagued by the client’s obstinacy and is having difficulty getting the client to address the situation objectively,  you might tell the attorney (regardless of whether it is true) that you had the same problem with your client,  and that you  used with your client the same approach you are suggesting he or she use with his or her client.

Finally, there is the situation where the problematic person is your opposing counsel.  Once in a while, the attorney on the other side is a “hot dog,” whose modus operandi consists of arm waving, posturing, and threatening.   If you can, convince opposing counsel that his/her client will be well-served, and will appreciate the attorney’s work, if a satisfactory solution can be created to allow both parties to put this situation behind them,  and to get on with their lives.  If that doesn’t motivate him or her to foster a settlement, appeal to the attorney’s self interest: stress that a happy client will return with more business, but if the case languishes for months, with attorneys’ fees mounting, the client will not likely return with more business or recommend him to others.

If your efforts do not produce a conciliatory attitude, call the mediator and explain that there’s a problem that you would appreciate his/her addressing at the mediation.   Explain who’s the problem and what you would like the mediator to do, either in his opening statement (if there will be one), or in caucus.  An experienced mediator can do wonders.  (See article, “Recruiting the Mediator as Your Ally,” in the ADR Corner column in the  PBCBA Bulletin of April 2017.)

Since his retirement from the Circuit Court bench, Judge Stern has served as a Mediator in Circuit Civil, Family, appellate and federal cases.  He also serves as an Arbitrator (AAA approved), and as a Special Magistrate, helping to move cases toward resolution by hearing motions which have been languishing on crowded court dockets.   Judge Stern may be reached at [email protected] or 561-901-4968.

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

[1]  When mediating a case, I strongly urge the attorneys to agree to such a joint session, wherein either attorney is urged to speak calmly and respectfully to the other party.  Such a joint session often helps to shorten the time needed for mediation, because it helps to identify the key issues that need to be addressed, and often defuses the anger the opposing parties so often feel toward one another.

Published: February 2023
Written by: Donna Greenspan Solomon

Arbitration Case Law Update

Morgan v. Sundance, Inc., 142 S.Ct. 1708 (2022).  Employee brought nationwide collective action asserting employer violated federal law regarding overtime payment.  Eight months later, employer moved to compel arbitration.  The district court denied the motion, and the Eighth Circuit reversed, finding that a waiver of the right to arbitration required a showing of prejudice.  The US Supreme Court vacated and remanded, holding that prejudice is not required to show that a party, by litigating too long, waived its right to compel arbitration under the Federal Arbitration Act (“FAA”). 

Viking River Cruises, Inc. v. Moriana, 142 S.Ct. 1906 (2022).  The FAA preempts any state rule discriminating on its face against arbitration, for example, a law prohibiting outright the arbitration of a particular type of claim.

Southwest Airlines Co. v. Saxon, 142 S.Ct. 1783 (2022).  Any class of workers directly involved in transporting goods across state or international borders falls within FAA’s exemption for contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce.

Outokumpu Stainless USA, LLC v. Coverteam SAS, 17-10944, 2022 WL 2643936, at *3 (11th Cir. July 8, 2022).  On remand from the US Supreme Court, the Eleventh Circuit found that non-signatory to the arbitration agreement could nevertheless compel arbitration as a defined party covered by the arbitration clause.

 Attix v. Carrington Mortgage Services, LLC, 35 F.4th 1284 (11th Cir. 2022).  The Eleventh Circuit held that a borrower and mortgage servicer, through an express delegation clause, clearly and unmistakably agreed to submit questions of arbitrability to the arbitrator, stating:  “At the end of the day, the ‘arbitrability of arbitrability’ is simply about the freedom to decide who decides disputes. Federal law provides, emphatically, that parties may opt out of the judicial system. One would be hard-pressed to find a topic about which the Supreme Court has provided more consistent clarity in recent years than arbitration. The Court’s precedents make clear that, when an appeal presents a delegation agreement and a question of arbitrability, we stop. We do not pass go. At some point in this litigation, someone may, perhaps, collect $200. Whether anyone will—and who will ultimately decide whether anyone does—are not questions we answer today.”

 Perera v. Genovese, 345 So. 3d 882 (Fla. 4th DCA 2022).  Once a court determines that arbitrator exceeded his or her powers, the court’s decision to vacate the award either in whole or in part is a discretionary decision that turns on whether the arbitrator’s other rulings are intertwined with the arbitrator’s unauthorized ruling.

Navarro v. Varela, 345 So. 3d 365 (Fla. 3d DCA 2022).  The determination of whether a particular claim must be submitted to arbitration necessarily depends on the existence of some nexus between the dispute and the contract containing the arbitration clause.  The trial court did not err in concluding that claims for intentional infliction of emotional distress and violations of the Florida Civil Rights Act were not arbitrable because they lacked a sufficient nexus to the parties’ agreement.

Malek v. Malek, 346 So. 3d 179 (Fla. 3d DCA 2022).  Arbitration agreement applicable to disputes between a company and its shareholders did not apply to dispute over ownership of the company in a dissolution action.

Addit, LLC v. Hengesbach, 341 So. 3d 362 (Fla. 2d DCA 2022).  Arbitration agreement contained on page 15 of 23-page assisted living residency agreement, which was neither set off nor made conspicuous in any manner, and where there was no opportunity for meaningful negotiation, was a contract of adhesion and was procedurally unconscionable; provision carving claims for eviction out of arbitration agreement was substantively unconscionable; as a matter of first impression, confidentiality provision of arbitration agreement was not substantively unconscionable; however, trial court erred in denying motion to compel arbitration where offending provisions were severable.

UniFirst Corp. v. Stronger Collision Ctr., LLC, 336 So. 3d 1283 (Fla. 3d DCA 2022). Under the rules of the American Arbitration Association (AAA) incorporated into arbitration provision,  plaintiff was entitled to proceed to ex parte arbitration under the AAA’s expedited rules, without seeking a court order compelling arbitration, after defendant chose not to participate in arbitration and did not reply to arbitration notices.

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 National Academy of Distinguished Neutrals and serves as a Chair on AAA (Commercial Panel) and FINRA arbitrations.  She is also a Certified Circuit, Appellate, and Family Mediator and Florida Supreme Court Qualified Arbitrator.  Donna is also 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 [email protected] or by visiting www.solomonappeals.com.

______________________________________________________________________________

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

Published: January 2023
Written by: Alfred A. LaSorte, Jr.

Harnessing Settlement Momentum for a Successful Mediation

Have you experienced a mediation which starts out like this – negative body language from all parties during the initial joint conference, and your clients privately expressing negative thoughts about the other side – about how greedy, untrustworthy, or sneaky they (and their counsel) are?  Then, after a few hours with little substantive progress, it seems like settlement has no chance.

Not an uncommon scenario.  Yet, many mediations that start this way still end up settling.  An interesting thing happens 3/4 of the way through.  Momentum shifts in both rooms from active resistance to active cooperation.  And after some more hard work on all sides, the case eventually settles.

An unpromising beginning morphs into a successful settlement. How, and why, does this happen?    Several factors can contribute to this momentum shift:

• Time in the room. Mediation is foreign processes to most. Parties can be nervous coming in, not knowing what to expect, and mistakenly thinking it’s smart to act tough. Spending time with their counsel in a conference room (or a Zoom virtual breakout room) can settle clients down and they start to loosen up.
• The mediator as the voice of reason. Lawyers who like their cases, and their clients, can end up “preaching to the choir” about the strength of cases, causing unrealistic optimism, in turn limiting the clients’ willingness to compromise. An effective mediator can often defuse this through some frank discussions with the parties, with them gradually realizing there are two sides to the story and their cases aren’t slam dunks. This often takes multiple discussions throughout the day before it sinks in.
• Seeing movement from the opposing party. Nobody wants to bid against themselves. And posturing and tough talk in initial sessions serve only to widen the gap between the two sides.  Minimal moves are usually met with equally minimal responsive moves, resulting in frustration on both sides.  But when one side eventually sees real movement from the other, it can loosen them up, helping move them from “we’ll see them in court” to “let’s see how favorable a number we can get them to.” 
• Humanizing the opposition. We often assume the worst motives in others, and the best in ourselves.  In mediation, this can mean seeing the opposition as evil, or greedy, or _________ (fill in any unflattering adjective).  Parties don’t see or hear what goes on in the other side’s room, or how their opponents act.  But the mediator does.  General reports from the mediator that the other side truly is making an effort can eventually help turn the tide.

How can you increase the chance of seeing this momentum shift at your next mediation?

            1) Start with realistic demands. My biggest mediation pet peeve is plaintiffs whose opening demands are higher than their “best day in court” number. (I hate when I hear “But we need to start with a cushion so we’ve got some room to move!”) The near-universal response to such a demand is a minimal defense counter. After a couple of hours, even with “reductions,” the plaintiff is still near their actual “best day in court”   number and the defense feels like it’s being played. The mediation goes south from there.

            My strongest advice to both sides is this – start with a compromise number.  Tell the other side it’s a compromise, and that you expect compromise from them as well.  You will save hours of wasted time and will send the “I’m reasonable” message the other side needs to hear in order to get reasonable themselves.

            2) Hang in there.  Often it takes a while for the “spirit of compromise” to reveal itself. Rather than encouraging your client to leave at the first hint the other side is being unreasonable, suggest they stick around, for at least another couple of rounds.  Mediation is not a one-hour process.  Give it time to work.

            3) Let the mediator help.  It can be hard for lawyers to defend the opposing parties’  motivations.  Clients want you to agree that the other side is just plain bad.  Use the mediator to defuse animosity and distrust.  When he or she does so, stay out of their way.  It’s frustrating as a mediator when a lawyer fights too hard and fires up their client, increasing the gulf between the two sides. The mediator is there to facilitate settlement.  Let them help you get there!

            4) Once you sense the momentum is shifting, go with it.  Talk to your client.  Encourage   them to go that extra step toward settlement.  (Your counterpart in the other room is  likely doing the same with his or her client at this point.)

And help them understand the true risks and costs of going forward with a trial – crucial info while weighing the relative benefits of a settlement proposal.  Whether to settle is of course the client’s call, not yours.  But make sure they have the tools necessary to make an informed decision. 

You can help make this momentum shift happen for your client.  Some cases do just need to be tried, and some mediations must fail.  But in the mediation room, when you sense momentum starting to build toward settlement, lean in and make it happen!

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 [email protected].