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?

_____________________________________________________________________________________________________________________

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/.