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.

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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].

Published: December 2022
Written by: Lawrence Gordon 

Do You Think About Diversity Before Hiring a Mediator or Arbitrator?

I sincerely believe that the short answer is probably not. How can it be a fair process if neutrals of color are not involved in meaningful numbers? The pool of Mediators and Arbitrators should reflect the community’s racial, ethnic, and gender diversity. 

According to the 2020 Census, Florida has a population of twenty-one and a half million people. Seventeen percent of Florida’s population is African American. This means that Florida has approximately two million, eight hundred thousand African Americans living in the state. These numbers would lead one to think that there are over five hundred Florida Supreme Court Certified Circuit Civil African American mediators practicing in Florida, but nothing could be further from the truth.

In 2020, I published an article, in this column, about the lack of diversity among Circuit Civil Mediators in Florida, “ADR In Florida, the Severe Lack of Diversity.” In 2020 African Americans made up 3.8 percent of Certified Circuit Civil Mediators. This means that there were (122) one-hundred twenty-two African American mediators. Little has changed since that time. According to the Florida Dispute Resolution Center, the number has grown to 4.04 percent which translates to (127) one-hundred twenty-seven African American Circuit Civil Mediators.

Compounding the problem is the fact that a similar lack of diversity exists in the Florid Bar which oversees all the attorneys practicing law in Florida. There are approximately one hundred and ten thousand lawyers in Florida. Unfortunately, less than three thousand are African Americans.

This means that there is a better than even chance that an African American participating in mediation will be represented by a white attorney and have a white neutral presiding over the negotiations. Most people of color who are involved in the mediation process very seldom see anyone else who looks like them at the table. Fair representation and equal access are essential to an unbiased system of justice. One cannot win if one is not allowed in the game. How can we continue to justify having slightly more than two hundred mediators of color in all Certified categories?

Even an African American billionaire as prominent as JayZ must struggle with the issues surrounding the lack of diversity among mediators and arbitrators. In 2018 JayZ was involved in a 204-million-dollar arbitration. He noticed that there were very few African American arbitrators for him to select from. He complained to the Court which agreed that the lack of African American arbitrators was discriminatory under the Constitution of New York State. The Court ordered arbitrators of color to be included in the pool of neutral professionals.

Imagine that you are a plaintiff with a profoundly serious problem. Perhaps you are litigating a multimillion-dollar business dispute or have lost a body part or function in a serious auto accident. Your case has been ordered to mediation by the Court. As you sit there looking around the room of multiple attorney defendants and mediators, you soon become aware of the fact that you are the only African American in the room. Suddenly, your pulse quickens, and you are concerned. You think to yourself can I get treated fairly under these circumstances? This situation happens regularly. I have had several people of color describe this scenario to me. I usually get to meet them when the case is mediated a second time with me serving as a mediator of color. They appear to breathe a sigh of relief when they meet me at the second or third mediation. One must wonder, can fairness and equality prevail under the above-described conditions? Just the fact that one thinks about the lack of diversity, equity, and inclusion during the mediation skews the playing field. We are all creatures of the environments that we have been exposed to during our lifetime. We all have our biases and prejudices. I would argue that there is a real possibility that our biases and prejudices might become a factor when there is only one person of color involved in the mediation process. We as people often tend to migrate towards and assist those parties who look like us.

Simply put, diversity is the presence of differences within a given group or setting. A diverse group or organization is one in which a variety of social and cultural characteristics exist. After reading the definition on the Florida Bar website, I have a better understanding of the problem. It reads, “diversity has a dynamic meaning that changes as the demographics of Floridians change. Apart from differences in race, color, gender, and religion just to name a few. These differences are constantly in flux. Defining diversity on current differences would limit its application to future changes and likewise, restrict or limit the Bar’s consideration of and response to significant changes.” SPOKEN LIKE A TRUE LAWYER.

Lawyers aside, the problems caused by the lack of diversity are both systemic and institutional. Nothing will change until all stakeholders take bold steps to make diversity, equity, and inclusion a priority.

Lawrence Gordon is President of Phoenix Mediation, LLC. He is both a Florida Supreme Court Certified Circuit Civil Mediator and a Florida Supreme Court Qualified Arbitrator. He is a member of the Florida Academy of Professional Mediators. He currently serves on the Florida Bar Board of Governors Advisory Committee. He is a former multi-term member of the Florida Bar Unauthorized Practice of Law Committee. He recently served on the Florida Bar Fifteenth Judicial Circuit Grievance Committee “D”. He previously served on the Board of Directors of the PBC Trial Lawyers Association (now known as the PBC Justice Association). He is currently serving his fifth term as Vice Mayor/Councilman in Haverhill, Florida. He currently serves as President of the PBC Caucus of Black Elected Officials and 2nd Vice President of the PBC League of Cities. He is a member of the Florida Bar and PBC Bar Association and serves on the ADR Committee as Municipal Liaison and on the Wrongful Death and Personal Injury Committees. He was a licensed Florida Adjuster for 35 years. He has published several articles in the area of Mediation/Alternative Dispute Resolution.

Published: November 2022
Written by: Adam Myron 

“Really?  I didn’t know that” is a common refrain I hear at the end of court-ordered mediation – a time when surprise is the last emotion I, as the mediator, want to elicit.  And yet, it’s the response I often get after informing attorneys that they, as well as their clients, are required to sign mediated settlement agreements.  (I imagine more than half the readers of this article are having a similar reaction right now.)  Whether or not you think the rule makes sense, it’s true: settlement agreements arising out of court-ordered mediations must be executed by the parties and their counsel; and there are many excellent reasons that attorneys should do so even if they regard it as superfluous.

First and foremost, the rules require it.  Specifically, Rule 1.730(b) provides that “[i]f a partial or final agreement is reached, it must be reduced to writing and signed by the parties and their counsel, if any.”  As lawyers, the Rules Regulating the Florida Bar prohibit us from “knowingly disobey[ing] an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists.”  R. Reg. Fla. Bar. 4-3.4.

Second, Rule 1.730 requires that a mediator report to the court whether or not an agreement has been reached and mandates that “[n]o partial or final agreement under this rule may be reported to the court except as provided” in 1.730(b).  Id.  Because Rule 1.730(b) requires the parties and their counsel to sign an agreement, a mediator cannot report the existence of an agreement unless that requirement has been met.  Florida’s Mediator Ethics Advisory Committee (MEAC) weighed in on the ethical obligations of certified mediators in this regard, writing in MEAC Opinion 2012-09 that “[b]oth the Florida Rules of Civil Procedure and the Florida Family Law Rules of Procedure require that an agreement be in writing and signed by the parties (and their counsel, if any), in order to constitute an agreement. Without meeting these requirements, there is no agreement.” 

Third, Rule 1.730(c) provides that “[i]n the event of any breach or failure to perform under the agreement, the court upon motion may impose sanctions, including costs, attorneys’ fees, or other appropriate remedies including entry of judgment on the agreement.”  Id.  If the attorneys did not sign a settlement agreement that a party later claims was breached, the court will not have the “teeth” of Rule 1.730(c) at its disposal to enforce the agreement.

Fourth, an attorney’s failure to sign a settlement agreement reached during a court-ordered mediation could render the agreement unenforceable.  In Gordon v. Royal Caribbean Cruises, 641 So. 2d 515 (3d DCA 1994), the Third District considered the flip-side of the equation when a party’s attorney, but not the party, signed a settlement agreement prepared during a court-ordered mediation.  Noting that Rule 1.730(b) “clearly mandates” that “a settlement agreement reached during mediation” must “be reduced to writing and executed both by the parties and their respective counsel” the court determined that “the parties … did not effectuate a settlement agreement in accordance with the dictates” of the rule.  Id. at 517 (emphasis in original).  In Freedman v. Fraser Eng’g & Testing, Inc., 927 So. 2d 949, 953 (Fla. 4th DCA 2006), the Fourth District cited Gordon and noted in dicta that although the issue was not raised on appeal, the fact that a proposed mediated agreement was not signed by all the parties and their counsel would have defeated the appellant’s argument that the agreement should have been enforced. 

To be sure, this issue is not wholly settled in Florida.  For example, in Jordan v. Adventist Health Sys./Sunbelt, 656 So. 2d 200, 202 (Fla. 5th DCA 1995), the Fifth District distinguished Gordon, affirming an order enforcing a settlement agreement that lacked the signatures of counsel where “the parties to be bound [executed] the document” and “but for the mediation rule, the missing signatures would be superfluous.”  Nevertheless, given the uncertainty in the law and all the other reasons that weigh in favor of signing mediated settlement agreements (even if merely “as counsel and solely to comply with Florida Rule of Civil Procedure 1.730(b)”), when confronted with the question of whether or not to sign, should there really be any question?

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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: October 2022
Written by: Al LaSorte, Jr.

Mediation is mandatory before trial in nearly all courts. This makes sense, since mediation so often results in settlement, negating the need for a trial.

But if you wait until just before trial to meditate, your clients will have already spent many tens, or hundreds, of thousands of dollars on attorneys fees and costs, a potentially insurmountable hurdle to settlement.  This is particularly true in smaller cases, where the fees and costs are frequently higher in proportion to the amount in controversy.

This is why I’m a big proponent of early mediation.  Get in before all that pre-trial money is spent on discovery, experts, etc. – the earlier the better. The longer you put mediation off, the higher the expenses will be for all parties, and correspondingly, the farther apart they will be once they finally meet to search for a settlement number everyone can live with.

But early mediation does have one big drawback: the lack of meaningful discovery beforehand.  Discovery is what most of all that pre-trial money buys. Less of it before mediation means the parties’ costs may still be low at that point.  This is good.  But without discovery, the parties will know a lot less about the other side’s case. And fear of the unknown hurts settlement prospects. This is bad!

So, when is it too early to mediate?  When are your clients better off spending some pre-trial dollars to learn about their case before sitting down to mediate? Here’s my lawyerly answer – “It depends.  Every case is different.”

Now, here’s my mediator answer (and I like to think I’m probably a better mediator than I was a lawyer!): “It’s never too early, if the attorneys can cooperate to educate the parties by voluntary exchange of documents and other discovery.” 

I’m not proposing handing over any evidence a judge is likely to sustain your objections to down the road.  But we all usually have a general idea of the types, and extent, of discovery the court is likely to permit.  Agree with opposing counsel to have both sides exchange that evidence, voluntarily, right at the outset of the dispute.  Then proceed to an early mediation and settle the case.

For instance, in a real estate deposit dispute, agree up front to buyer and seller exchanging all text messages and emails between them and the brokers.  This will be discoverable eventually anyway. Getting it early (and inexpensively) gives both sides a rough idea as to how that testimony is likely to play out at trial, even before lengthy (expensive) depositions are taken.  It’s not perfect, but it helps lessen clients’ fear of the unknown, which is the enemy of successful mediation.  Do everything you can to reduce that fear, right up front, on both sides.  Then go right to mediation, and hurry up, before everybody’s fees and costs go up!

Note – some types of cases require pre-suit mediation (real estate deposit disputes and condominium membership disputes, for example), giving the parties no choice but to mediate before any meaningful discovery can be compelled from their opponents.  But here, too, counsel can increase the chances for mediation success through voluntary exchanges of documents and other evidence.

In some cases, particularly ones with no love lost between the parties, clients may not be willing to turn anything over to the opposition without a court ordering them to.  And there truly are some cases in which the parties won’t be satisfied that their opposition isn’t hiding the ball until having spent large sums to search in every nook and cranny. 

Such cases don’t generally lend themselves to early mediation.  If you size up either side as being so intent on seeing their day in court that early mediation seems futile, by all means save your clients the expense of mediation and dive right in on discovery.   

But such cases are pretty rare. And they are usually the most difficult cases to settle at a later mediation as well. So don’t be discouraged if early mediation is unsuccessful. Go try your case. 

Some lawyers are reluctant to suggest early mediation for fear of making their clients look too eager to settle. Good communication between opposing counsel is key to reducing such concerns. The lawyers can jointly recommend early mediation, rather than it coming from one side or the other, thereby insulating both parties from this concern.  

Bottom line, early mediation is appropriate in most cases. Weed out the hardcore parties hell-bent on having their day in court, and early mediate all the rest. If you and opposing counsel do everything you can to ensure all parties have the information they need, and early mediation will be the way to go.  

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].