Published February 2025

Martinez v. Ring-Cent., Inc., 392 So. 3d 569 (Fla. 4th DCA 2024).

Federal Arbitration Act (FAA) three-month deadline for filing motion to vacate arbitration award did not preempt 90-day deadline in Florida Arbitration Code (FAC).

Eglin Fed. Credit Union v. Baird, 49 Fla. L. Weekly D1795 (Fla. 1st DCA Aug. 28, 2024).  Emailed notice of newly-added arbitration and class-action waiver provisions in member’s agreement with not-for-profit cooperative and financial institution did not provide member with reasonable notice of new terms, such that she did not mutually assent to arbitration; notice was a hyperlink buried in routine monthly account statement email, which indicated only that it would link to cooperative’s quarterly newsletter, email said nothing about changing terms of agreement or that member should have followed the hyperlink for important updates, email made no mention of arbitration or class-action waiver provisions, and even if she had followed the link, newsletter did not provide new terms either.

Patterson v. Melman, 49 Fla. L. Weekly D1895 (Fla. 2d DCA Sept. 13, 2024).  Real estate agents’ refusal to participate in mediation before pursuing arbitration to resolve claims brought by vendors of duplexes after potential purchaser canceled purchase agreement did not constitute waiver of right to arbitrate under terms of listing agreement, even though mediation was purported condition precedent for pursuing arbitration; by demanding arbitration as appropriate forum to resolve dispute, even if prematurely, agents indicated that they wanted to arbitrate dispute, which could not be seen as having acted inconsistently with arbitration right or having affirmatively manifested acceptance of judicial forum, and, unlike waiver, which was irrevocable without consent of opposing parties, agents could cure failure to perform condition precedent by fulfilling it.

Osborne v. Drees Homes of Florida, Inc., 49 Fla. L. Weekly D2151 (Fla. 5th DCA Oct. 25, 2024).  Orders denying motions for arbitration are reviewed de novo, except that factual findings are reviewed for support by competent, substantial evidence.

GMRI, Inc. v. Brautigan, 392 So. 3d 1098 (Fla. 1st DCA 2024).  Arbitration agreement does not need to be signed to satisfy written agreement requirement of Federal Arbitration Act (FAA);  if party moving to compel arbitration cannot show signed agreement to arbitrate exists, court must examine party’s words and conduct to determine whether party assented to agreement.

City of Naples v. Wolff, 391 So. 3d 617, 618 (Fla. 6th DCA 2024).  Trial court was authorized to grant extension of deadline to request trial de novo following issuance of nonbinding arbitration award.

Boca View Condo. Ass’n, Inc. v. Lepselter, 392 So. 3d 144 (Fla. 4th DCA 2024), review denied, No. SC2024-1404, 2024 WL 4903515 (Fla. Nov. 27, 2024).  Attorney’s fees incurred in enforcement of provisions of arbitration award are compensable under statute providing that a party who files a complaint for a trial de novo shall be assessed the other party’s arbitration costs, court costs, and other reasonable costs, including attorney’s fees, incurred after arbitration hearing if judgment upon trial de novo was not more favorable than the arbitration decision.

Lawnwood Med. Ctr., Inc. v. Rouse, 394 So. 3d 51 (Fla. 4th DCA 2024).  Party rejecting arbitrator’s decision and renewing demand for trial must, within 20 days of arbitrator’s decision, file request for trial de novo or motion for trial.

Calvert v. Aleckson, 49 Fla. L. Weekly D2152 (Fla. 5th DCA Oct. 25, 2024).  An appeal taken from an order denying a motion to compel arbitration becomes moot when a new complaint is filed.

1. Shore Med. Ctr. v. Navarro, 389 So. 3d 785 (Fla. 1st DCA 2024). Expert testimony regarding the nature and impact of patient’s stroke before presenting at hospital was admissible in binding damages arbitration.

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 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 2025

Having started practicing law in Florida 35 years ago, when mediation was in its infancy, and now later in my career focusing on serving as a mediator, I recognize that a lot has changed in the world of mediation.

To be sure, the amount of research, scholarship and opinion surrounding mediation has exploded and is ever increasing. This is reflected in everything from law review articles to mediation education to U-Tube videos. The reason is undoubtedly because mediation has proven so successful as an effective dispute resolution method. We should truly commend all those involved in creating, growing and championing the now robust mediation process.

While the boom of new information and resources regarding mediation is clearly a positive development, I suggest we always remember a never-changing fundamental of the mediation process—focusing the parties on thoroughly considering and assessing their alternatives.

Status Quo—Continuing the Litigation Alternative

At some point in time, at least one of the parties believed that filing a suit was the best option (assuming it is not pre-suit mediation).  As a result, the first alternative is staying the course, which is continuing the litigation.  This alternative has risks that the parties probably have already partly considered, such as attorneys’ fees and costs, loss of time, and overall uncertainty.

However, often the parties have not extensively assessed all the risks in continuing the litigation.  This includes both the types of risks and the magnitude of the most obvious risks. Usually, the simple scheduling of mediation starts the parties reassessing the continuing litigation risks.  Even more so, the mediation session should serve to make clearer the continuing litigation risks because the parties will need to compare those risks to alternatives.

As an example, counsel often understand and appreciate the limitations of the judicial system and relief—parties not so much. Continuing the litigation requires compliance with numerous rules of procedure and time deadlines, satisfying each element of a cause of action or affirmative defense, offering expert testimony, establishing legally permissible damage models and remedies, and meeting strict evidentiary requirements for admissible evidence.  Of course, the specifics of each case are unique and prove the inevitable point—the devil is in the details when evaluating continuing the litigation.

Settlement Alternative

Settlement is the alternative to continuing the litigation. It is limitless in its potential scope and variation—largely unrestrained by all the rules governing continuing the litigation. Settlement has the key advantages of bringing certainty to the parties and can be customized in ways that judicial relief is legally incapable.  The flexibility that is possible through settlement is what makes mediation a creative endeavor and a potential settlement so strikingly different than continuing the litigation.

Some common examples of settlement terms that are not possible with continued litigation include payments over time, payments to or from persons not parties in the suit, terms reducing tax consequences, general releases (including pertaining to persons not named in the suit) and non-monetary provisions such as confidentiality and non-disparagement clauses.  The number and type of terms that can be negotiated into a settlement agreement depends on the case and the imaginative resourcefulness of those involved in formulating the settlement.

The Opportunity for Settlement   

It is when the parties understand the risks of continuing the litigation compared to the key advantages of settlement—flexibility of terms and certainty of result—that there is an opportunity for settlement.  But this is only an opportunity.  The actual settlement often comes through the hard work of fashioning the precise terms of settlement—many times in a creative and customized manner.

Although some parties may begrudgingly accept that settlement could be a better alternative than continuing the litigation and other parties may eagerly embrace the opportunity of self-determination through settlement, the essential assessment they must make is the same.  Are the proposed settlement terms better than the risks associated with continuing litigation?  In a mediation where this question is answered in the affirmative, there is settlement.

Conclusion

In emphasizing the importance of comparing alternatives, I do not suggest ignoring the human factors and dynamics that impact the mediation process—many of which create or hinder an overall environment conducive for resolution. However, a fundamental of mediation remains a thorough consideration and assessment of the parties’ alternatives (continuing litigation vs. settlement).

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Hank Jackson has practiced law for 35 years and now serves as a mediator. He is a Florida Supreme Court Certified Civil Circuit Mediator and is Board Certified in Business Litigation by the Florida Bar. He can be reached at 561-271-1878 or [email protected] or visiting http://hankjackonlegal.com. For additional ADR tips and resources, go to www.palmbeachbar.org/alternative-dispute-resolution-committee.

Published: December 2024

With the 2020 pandemic now firmly in the rear-view mirror, let’s assess Zoom’s place in the mediation world. Initially considered a stop gap, a means to let us mediate despite forced distancing, Zoom has proven its value and is here to stay.

Zoom’s cost savings and convenience alone would justify its continued use. But my favorite Zoom feature by far is one we use in virtually every mediation – screen sharing.

Screen sharing is exactly what its name implies – the ability to easily share whatever is on your computer/phone/iPad’s screen with all Zoom participants, on their screens at once.

Every creative writing teacher exhorts students to “show, don’t tell.” The most effective means of proving a point during mediation is to show its evidence onscreen for all to see.

I have seen screen sharing used effectively in a wide variety of commercial mediation presentations – real estate cases sharing aerial photos to show boundary locations; business cases sharing the relevant contract language; construction cases sharing expert reports on allegedly defective manufacturing building products. Although I don’t handle personal injury mediations, I can imagine how effective a short day-in-the-life video could be in a high stakes PI mediation.  Whatever your case is about, you’ve got your evidence all lined up to prove the case in court, right? The other side needs to see it during mediation if you want them to settle.

Sometimes, the opposing side’s lawyer is the one who needs persuading, not their client. Sharing a dispositive appellate case onscreen, with the crucial holding highlighted, can really open their eyes to the strength of your position.

One of the most effective uses I’ve seen in mediation is sharing a damages calculation onscreen. Seeing the numbers can be so much more persuasive than just hearing them. (Show, don’t tell, remember?)

I often do a screen grab of one party’s screen share presentation so I can put it up on screen and discuss during private caucus with the other side (with counsel’s permission, of course).  Zoom even has a nice mark-up feature that lets everyone make notations on a shared image. (A shout out to Donna Greenspan Solomon for this tip!)

You can even show video deposition excerpts onscreen.  Mediation can be eye-opening for parties.  It’s often the first time they are truly confronted with the ammunition the other side has compiled.

We, as lawyers, can sometimes preach to the choir a bit, telling our clients how strong their cases are. This can be counterproductive, making clients overconfident and inflexible – never a good thing in mediation.  A screen share of the other side’s evidence can be the wake up call that restores some objectivity to clients’ case evaluations. This can be just what it takes to bridge the gap and facilitate settlement.

The key to effective mediation screen sharing is, of course, preparation. Just like demonstrative aids in front of a jury, use the screen to tell a story. The mediation may be the last opportunity you have to speak directly to the opposing parties, so make it count. Take the time to create an effective demonstration of the crucial facts in your favor, then put it on the screen. Show them, don’t tell them!

Screen sharing isn’t only an opportunity to prove your case. It also shows the other side that you do your homework. That you’re prepared. That you will be a formidable opponent in front of a jury. All resulting from what you share, and how you share it, on their screens.

And now a few mediation screen share tips:

– Less is more. As with everything else you present as a lawyer, keep your screen share brief.
– When sharing documents, be sure the window you share is large enough that everyone can read the important parts you’re showing them.
– Before sharing your screen, make sure your device’s desktop is clean and neat. And turn off all irrelevant apps. A million disarrayed icons and windows in the background can be so distracting.
– And, please, turn off your device’s notifications. Nobody wants to see that off-color text from your golf buddy pop up!

Zoom offers many mediation benefits.  The key is to make them work to your clients’ advantage. Effective screen sharing can help settle your case.  Use it!

For a wider discussion of Zoom’s advantages, see Al’s May, 2023 ADR Corner article, “To Zoom or Not to Zoom.

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 600 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/

Published: November 2024

In April 2023, I was teaching a mediation training when Ft. Lauderdale was hit by an extreme rain and flooding event.[i]  Not a hurricane.  Not a tropical storm.  Not a king tide.  Rain.

The Director of the 17^th Judicial Circuit ADR Department was in my class, getting phone calls from her employees:  “I can’t leave my building.  Everything is under water and only the tops of the cars on the street are visible.”  Two colleagues had homes damaged in the floods.  One had to be rescued from her house in the middle of the night.

Downtown Fort Lauderdale and the Broward courts shut down entirely.  Seeing images of the closed courthouse, I began to think about how climate change affects our legal institutions:  courts, lawyers and litigants.

The summer of 2023 brought more distressing headlines: July 4, 2023 – hottest day on Earth in 100,000 years.  Florida’s coastal waters reached 101 degrees Fahrenheit.  The coral reefs are dying.  The north Atlantic current is collapsing.  We are experiencing the 6^th mass extinction.  The 14^th homeowner’s insurance company leaves Florida.

These events and headlines were overwhelming and terrifying.  Those feelings – being overwhelmed and terrified – are recognizable as symptoms of amygdala hijack, an activated survival instinct that left me feeling frozen, unable to fight or flee.

My mediator’s curiosity helped me get unstuck, to shift from fear and paralysis to constructive action.  While searching for a way to engage more effectively with this complex issue, I learned two concepts: “eco-anxiety” and “eco-grief.”

• “eco-anxiety:  extreme worry about current and future harm to the environment caused by human activity and climate change.”
• “eco-grief:  psychological response to loss caused by environmental destruction or climate change.”

Naming the problem helped me reframe and understand the mental health challenge.  We all experience climate-related disasters (either in person or as witnesses through the media) but our feelings of powerlessness often lead us to push them aside, believing the problem is too vast to solve.

In the language of conflict resolution strategies, we hope to avoid the danger by not moving.  Perhaps it will pass us by and go away.  Perhaps it will solve itself.  Perhaps someone else will fix it.  It only takes the cooler breezes of autumn to put the hot summer aside as a past memory, no longer dangerous.

That was 2023.  Then, in 2024, the “1 in 1,000 years” flooding event happened again.

Modern life makes us blind to the patterns of nature until they intrude on our comfort. Those of us with means can better insulate ourselves or recover from the impacts, but that does not apply to many of our neighbors, who are $400 away from a financial crisis.

Our daily lives are consumed by the urgency of work, family and immediate concerns. The unrelenting cycle of crises, combined with compassion fatigue, leaves us paralyzed and powerless. In the language of mediation, we lose our capacity for self-determination on the bigger issue.

Mediators are agents of hope, experts in breaking impasses and inspiring change. We listen, reframe and engage people in hard conversations and problem-solving. We help people find areas of agreement and envision alternative futures.

In the realm of conflict resolution, “ripeness” refers to a window of opportunity for resolution. The best time to address climate change was twenty years ago, but the second-best time is now. As things stand, substantial and large-scale efforts are required to reduce carbon emissions by 2030 to avert catastrophic consequences.[ii]

Dr. Katharine Hayhoe, a climate scientist and educator, has said: “The most important thing we can do to fight climate change is to talk about it.”[iii]  My own “climate awakening” has led me to commit to these conversations, make individual changes in my life, get educated and connect with others in this endeavor.

Faced with eco-anxiety and eco-grief, we must punch through the paralysis and channel our emotions into action. Climate change is no longer a distant threat.  It’s here and now.  Avoidance will not help us.  This threat will shape the world we leave to future generations.  It will fuel conflict after conflict.  Lawyers and mediators have skills that empower us to be agents of change.

Can we do it?  Yes.  Will we do it?  That answer depends on all of us.

Resources:

Drawdown:  The Most Comprehensive Plan Even Proposed to Reverse Global Warming, by Paul Hawken. (2017)[iv]

2024 Law Firm Climate Accountability Scorecard, Law Students for Climate Change Accountability[v]

“Judge sides with young activists in first-of-its-kind climate change trial in Montana” Associated Press.  Aug. 14, 2023.[vi]

Ana Cristina Maldonado practiced as a full time neutral for 13 years, concentrating her practice in family, dependency, real estate, insurance and commercial cases.  She has mediated over 2,500 mediations and trained over 400 mediators. As Chair of The Florida Bar’s ADR Section (2024-2025) she has championed the diversification of the field of dispute resolution.  Cristina has a B.A. from Amherst College, a M.Sc. in Conflict Resolution from George Mason University and her J.D. from St. Thomas University. She is fluent in Spanish and Portuguese.  Currently, Cristina teaches at Nova Southeastern University Shepard Broad College of Law.  She is the parent of a 6^th grader, future member of the Class of 2031.

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

[i] https://www.buzzfeed.com/alexalisitza/27-photos-flooding-fort-lauderdale

[ii] https://www.climaterealityproject.org/blog/2030-or-bust-5-key-takeaways-ipcc-report

[iii] https://www.ted.com/talks/katharine_hayhoe_the_most_important_thing_you_can_do_to_fight_climate_change_talk_about_it?subtitle=en

[iv] https://www.amazon.com/Drawdown-Comprehensive-Proposed-Reverse-Warming/dp/0143130447/ref=sr_1_1?adgrpid=1332608657102994&hvadid=83288111967509&hvbmt=be&hvdev=c&hvlocphy=45536&hvnetw=o&hvqmt=e&hvtargid=kwd-83288383171452%3Aloc-190&hydadcr=22535_10434988&keywords=project+drawdown&qid=1697121114&sr=8-1

[v] https://www.ls4ca.org/scorecard

[vi] https://www.npr.org/2023/08/14/1193780700/montana-climate-change-trial-ruling