Managing Client Expectations in Mediation

By: Al LaSorte
Published: January 2022

One reason that mediations fail is parties arriving at mediation with unrealistic expectations about settlement terms. By educating their clients about the mediation process and frankly discussing the strengths and weaknesses of their cases with them, lawyers significantly increase the likelihood of reaching a mediated settlement.

Several reasons for clients’ unrealistic mediation expectations come to mind. First, litigation is stressful.  Whether as plaintiff or defendant, a pending suit can be the most stressful problem in a client’s life. Litigants with little court experience may be hoping the other side will just wave the white flag at mediation and give them the result they seek. This, of course, never happens in the real world.

Second, because lawyers generally like their clients and their cases, it’s understandable that some “preaching to the choir” occurs between lawyers and clients about their cases’ strength. While expressions of case enthusiasm may engender clients’ confidence in their lawyers, they can also make it harder for clients to objectively evaluate their cases’ weak points, thereby overestimating their own cases and underestimating their opponents’.  This, in turn, makes compromise much harder to achieve.  And compromise, of course, is the very heart of the mediation process.

Third, law firm ads on TV, radio, social media and billboards bragging about their clients’ huge recoveries no doubt inflate expectations as to what plaintiffs can expect in their own cases.  The same is true when clients hear anecdotally about all the money Uncle Louie or their next-door neighbor won in their lawsuits.

For mediation to succeed, it is crucial for all parties to objectively evaluate their cases’ strengths and weaknesses, as well as outside issues such as collectibility, before entering the mediation room (or, more likely these days, joining the Zoom conference).

Granted, it’s not always easy for lawyers to be candid with clients about their cases’ weaknesses. Will the client think the lawyer doesn’t believe in their case if she points out its flaws?  Will the client maybe start looking elsewhere?

There is an obvious tension between a lawyer’s roles as advocate and as counselor. But clients need both. A frank discussion of a case’s bad points not only increases the likelihood of settlement at mediation, it also helps with expectations in the event the case ultimately has to be tried.

Clients also may not appreciate how outside variables can impact the result if the case must be tried, regardless of the case’s merits. Witnesses’ memories fade; judges are human, and sometimes make mistakes; many areas of the law are unsettled and therefore uncertain; appeals are expensive and difficult, and can take years to complete. Building an informed and realistic client requires all these issues be discussed and taken into account.

Managing client expectations requires certain steps before, and others during, mediation. Before mediation, be sure to incorporate discussion of the weaknesses in your client’s case, and the uncertainties in litigation in general, into your preparation regimen with the client. This can be done constructively, and doesn’t have to cause your client to doubt your enthusiasm, or your intention to give one hundred percent toward achieving the best possible result for them.

There are so many things that could go right, or wrong, in every lawsuit. Yet, I can’t tell you how many times, as a mediator, a party bragged to me that “my lawyer says I’ve got a ninety percent chance to win.  Why should I settle for less?”

Clients with such high expectations are understandably reluctant to compromise meaningfully. A more candid pre-mediation discussion with the client about what could go wrong would help them to understand the real risks, and to factor them into their evaluation of what a reasonable compromise would look like.

Ideally, your mediator will be someone the client considers authoritative. Retired judges have that gravitas which lends them credibility in a mediation setting. So do litigators with long careers in the particular area involved in the case.  A mediator who has spent years trying similar cases will likely be seen by your client as an expert. With that expertise comes credibility as to the hurdles that the case presents.

During mediation, look to the mediator for assistance with an unrealistic client. In private caucuses, don’t hesitate to ask the mediator what problems they anticipate a trial will present.

Then, when the mediator moves to a different room, take advantage of this private time with your client to discuss the points the mediator just raised. This can be done constructively, and without sounding like you think the case is a loser. Remember, you are not just their trial lawyer, you are their counselor. So, counsel them!

In conclusion, successful mediation depends on your client becoming as objective as possible about the chances of success and failure. Frank discussion in advance of, and during, mediation will help your client develop reasonable expectations, in turn increasing the likelihood of settlement.


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 Al@LaSorteMediation.com.

Arbitration Case Law Update

By: Donna Greenspan Solomon
Published: December 2021 

 

Hamrick v. Partsfleet, LLC, 1 F.4th 1337 (11th Cir. 2021).  Federal Arbitration Act’s (FAA) carve-out exception to final judgment rule, which allows review of some district court interlocutory orders, including orders denying petitions to order arbitration under federal law, does not provide a carve-out for orders denying motions to compel arbitration based on state law.

Calderon v. Sixth Rent a Car, LLC, 5 F.4th 1204 (11th Cir. 2021).  Customer’s class action claims against car rental agency for breach of contract and violation of two states’ consumer protection laws, based on its charge for damages to car that allegedly had not occurred, did not arise out of customer’s contract with online travel booking company, as would support arbitration of claims under Federal Arbitration Act’s (FAA) strong policy favoring arbitration; although customer’s contract with online booker was governed by FAA, dispute in question was not an immediate, foreseeable result of the performance of online booker’s contractual duties.

McLaurin v. Terminix Int’l Co., LP, 20-12904, 2021 WL 4236673 (11th Cir. Sept. 17, 2021).  Under the Federal Arbitration Act (FAA), in addition to the losing party being allowed to oppose the winning party’s motion to confirm the arbitration award, the losing party can also take up to three months from the arbitration award to file a separate motion to vacate, modify, or correct the award.

Laurel Point Care & Rehab. Ctr., LLC v. Estate of Desantis by & Through Desantis, 323 So. 3d 186 (Fla. 4th DCA 2021).  Arbitrator, and not trial court, had authority to decide whether arbitration agreement, which specifically referenced and incorporated American Health Lawyers Association (AHLA) Alternative Dispute Resolution Service Rules of Procedure for Arbitration, was a separate document so as to satisfy requirement in arbitration rules; reference and incorporation of AHLA rules in arbitration agreement was a clear and unmistakable delegation of authority to have arbitrator decide issue, and AHLA rules used mandatory language requiring arbitrator to decide issue.  The trial court exceeded its authority by concluding that the arbitration agreement did not satisfy a requirement in the AHLA rules as that was an issue clearly delegated to the arbitrator under the rules.

Russell v. Hydroprocessing Associates, LLC, 46 Fla. L. Weekly D1352 (Fla. 1st DCA June 10, 2021).  Employee executed two contemporaneous employment agreements with related companies.  One agreement included an arbitration provision.  The other agreement did not include an arbitration provision but included an integration clause stating that the agreement was the entire agreement between the parties and superseded all prior agreements.  The trial court passed the issue of arbitrability to the arbitrator, which was error.  It is the trial court’s responsibility to determine whether a valid arbitration agreement exists especially where, as here, the arbitration clause itself is challenged.  The court’s responsibility to determine whether a valid arbitration agreement exists is not altered by conflicting arbitration provisions.

Leder v. Imburgia Constr. Services, Inc., 46 Fla. L. Weekly D1719 (Fla. 3d DCA July 28, 2021).  Homeowners and construction contractor waived their right to arbitrate change order dispute.  Construction contract’s dispute resolution procedure provided that submission of dispute to agreed-upon Initial Decision Maker (the Miami Shores Village Building Department Official) was condition precedent to mediation, which was condition precedent to arbitration.  However, contractor failed to file claim with Initial Decision Maker after change order dispute, the homeowners filed a complaint in court rather than with Initial Decision Maker, and contractor did not move to compel arbitration in answer to homeowners’ complaint but merely moved to dismiss the complaint, which the trial court granted in error.

Marino Performance, Inc. v. Zuniga, 4D20-1463, 2021 WL 3641855 (Fla. 4th DCA Aug. 18, 2021).  Automobile dealer waived right to arbitrate as to unnamed class members in class-action proceeding.  Dealer, which filed motion to compel arbitration on eve of certification hearing, had done nothing to preserve its right to arbitrate in the event of class certification.  Dealer’s responses to interrogatory and document requests were directed to class representatives and proposed class members, and dealer had attempted, unsuccessfully, to have entire action dismissed on the merits.  It was only after that unsuccessful attempt, and months later, that dealer attempted to compel arbitration.  The key ingredient in the waiver analysis is fair notice to the opposing party and the court at a relatively early state of litigation of a party’s arbitration rights and its intent to exercise them.


Donna Greenspan Solomon was the first attorney certified by The Florida Bar as both Business Litigator and Appellate Specialist.  Donna is a Member of the AAA’s Roster of Arbitrators (Commercial Panel).  She is a FINRA Chair-Approved and Florida Supreme Court Qualified Arbitrator.  She is also a Certified Circuit, Appellate, and Family Mediator.  Donna is a Member of the Florida Supreme Court Committee on Standard Jury Instructions—Contract and Business Cases.  Donna can be reached at (561) 762-9932 or Donna@SolomonAppeals.com or by visiting www.solomonappeals.com.

How to Make Your Client Amenable to a Mediated Settlement

By: Judge (Ret.) Kenneth Stern
Published: November 2021 

Let’s face it.  When you have the intake conference with a potential new client, you must assure him or her that, by retaining you, s/he would be in the hands of a competent litigator who knows how to try cases.  If you don’t create a strong impression in that regard, the client will likely head for the door, telling you “I’ll think it over and get back to you,”  to seek an attorney who creates the desired impression.

It is difficult to inform the potential new client in the intake conference that perhaps the case can settle for a worthwhile amount and thereby avoid the time, expense and uncertainty of going to trial, perhaps two or three years from now, without seeming to create the impression that you might not like to try cases, or that you’re not very good at it.   However, skillfully approaching the subject can create the impression that you’re an experienced warhorse who can get the best possible outcome for your client either in the courtroom or in the mediation room, whichever serves the client the best.

If you’re chary of broaching the subject of settlement at the intake conference, fine.  Have the client retain you, and await a moment when the client has seen the negative evidence the other side has to present.   That moment can be months after the intake conference, by which time you will have also identified evidence and witnesses both favorable and unfavorable to your case.

There is a basic approach to opening the client’s mind to the value of a good settlement without making it look as though you’re afraid to go to trial.  I used this approach when I was litigating and mediating cases before going on the judicial bench, and I use it now as a mediator;  you can use it as a litigator in a way that preserves your appearance as a competent, aggressive courtroom lawyer.

There will be various facts, items of evidence, and potential trial witnesses that will come to light during the discovery process, which are not favorable to your case.  Keep your client apprised at reasonable intervals of these developments, as well as those favorable to your case.  In these contacts with your client, ask the client questions to elicit more information that will help you assess the strengths and weaknesses of your case and the opposing party’s case.

Have the client advise you whether potential witnesses can be shown to have a bias in favor of the party in whose favor the witness would testify.  Ask the client such things as what preceded a threatening email your client or the opposing party sent to the other;  what a potential witness could tell the jury that would be helpful or harmful to your case;   are there other potential witnesses who could testify about the adverse party’s having acted similarly to others;  the list of issues you could discuss with your client is endless.   In these discussions, your client will begin to appreciate that your case is not a slam dunk.

Now you are ready to say something to your client that will underscore the uncertainty of what the outcome of a trial could be.   Let your client understand that you are an experienced litigator and a capable warrior in the courtroom, but that the best warrior in the world will not do very well if s/he is armed only with a slingshot and the opponent has a Sherman Tank.   Note, if this is the case, that your case has some strong points and good evidence,  but that there are weaknesses, and point them out.

Explain the legal concepts that could reduce your client’s recovery, such as comparative negligence, or anything the client did that could lead the jury to find that your client was the main cause of the events of which s/he complains and of the resulting damage, or your client’s failure to mitigate damages;  or the statutes and/or case law that could limit the client’s recovery.   If there is a contractual or statutory provision that could render your client liable for the other side’s attorney’s fees and costs, point this out and note any facts or evidence in the case that could lead to this result.

Explain to your client that, after you win the case, the other side will probably appeal, and the appellate decision might not be announced for as much as a year, and the appellate court might send the case back down for a new trial.  Make sure the client understands how much all of that could cost,  and that even a successful recovery at trial could be only slightly more, or even less, than the client will have spent on your fees and costs over the years involved.

Having gradually informed your client’s perceptions with an understanding of the realities of litigation,  you will not have to overcome a naïve client’s pie-in-the-sky expectations.   Instead, you will have a client who can intelligently discuss with you the question of whether a settlement offer is worth taking.

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

 

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Since retiring from the Circuit Court bench, Judge Kenneth D. Stern has served as a Mediator, Arbitrator, Special Magistrate, Hearing Officer and Umpire.  After law school (where he was Editor-in-Chief), he clerked for an appellate judge, served with the Antitrust Division of the U.S. DOJ, and as an Asst. U.S. Atty. in the Southern District of Florida.  In 1981, he came to our county, and practiced civil litigation and criminal defense, in federal and state courts.  In 1999, he was appointed to the bench by Governor Jeb Bush. Judge Stern may be reached at kdstern@gmail.com or at 561-901-4968. 

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

Mediation, One of the Answers to Conflict and Disruption!

By: Lawrence Gordon
Published: October 2021 

It has been more than a decade since I decided to become a Florida Supreme Court Certified Circuit Civil Mediator. I was smitten by the Mediation process in the 1980s while attending mediations and negotiating on behalf of several insurance carriers. Mediation was relatively new and rarely used in settling injury claims at that time. I knew right away that I wanted to be a Certified Mediator and own a mediation practice. I was blessed to start Phoenix Mediation in 2018.

I have been a member of the Palm Beach County Bar Association for several years. I am honored to serve on the Alternative Dispute Resolution (ADR) Committee. Even though I have published several articles in the Palm Beach County Bar Association Bulletin, this one is different and special. The ADR Committee invited me to write this article in honor of “Mediation Week,” October 18-22, 2021. I want to thank them all for the confidence that they have shown in me. I would like to especially thank Ted Deckert for encouraging me to step forward in his stead as he has historically written the “Bulletin ” article for Mediation Week.

Mediation Week is recognized by both the American Bar Association and the Florida Bar Association. In the past, the American Bar Association has emphasized such Mediation Week themes as Mediation, Civil Discourse, and The Importance of Selecting Diverse Neutrals. This year’s theme is Mapping the Future So Conflict Doesn’t Disrupt. Additionally, the Association for Conflict Resolution (ACR) has declared October 21, 2021, as “Conflict Resolution Day.”

This year’s theme seems very appropriate as we appear to have become a tribal society. Red versus Blue, liberals versus conservatives, 

White versus Black and on and on. How do we address these issues and conflicts to avoid them disrupting the future of this great nation? Mediative-type activities may very well be our best path to cooperation, communication, and positive future societal growth. Our best route to a society where diversity, equality, and inclusion become our reality and not just a nice-sounding phrase that’s often spouted while little to nothing changes. A world in which we hear and listen to each other, a society where we accept each other’s points of view even if we can’t agree. Mediative-type activities can create a world where we depersonalize and depressurize situations by focusing on issues, rather than people. One where we do our homework before making asinine ignorant statements, where we keep open minds, care about others, and empathize with our neighbors. We should take time to educate ourselves about our neighbors and remove ourselves from negative situations which have shaped much of our past. Mediation-type activities can certainly help us structure things in a way that lessens conflicts and disruption. We can make a difference.

Once again, our ADR Committee will be doing its part to make Mediation Week a success. We will again ask the Palm Beach County Commission, the Palm Beach County School Board, and various cities throughout Palm Beach County to issue proclamations officially declaring October 18-22, 2021, Mediation Week in their respective municipalities. As a six-term elected official and Vice Mayor in the Town of Haverhill, I previously spearheaded our proclamation process and will continue to do so this year. The Palm Beach County Bar Association President, the ADR Committee chair, and ADR committee members will appear before various commissions to accept proclamations and speak on the importance of Mediation Week and civil discourse.

As usual, the ADR Committee will present its annual lunchtime seminar during Mediation Week. Visit the Palm Beach County Bar Association’s website for details: https://www.palmbeachbar.org/.    

Please also watch for details about our signature event, the 19th ANNUAL ADR SEMINAR coming February 2022.


The ADR Committee will continue to offer speakers to civic groups and other professional organizations to discuss mediation and alternate dispute resolution in general. Any group wishing to invite an ADR speaker should contact the ADR Committee Chair: Kenyetta Alexander: kenyetta@osherowpllc.com. We also invite you to visit the ADR Committee webpage at https://www.palmbeachbar.org/adr for previously published articles and other information on mediation and alternate dispute resolution.

Lawrence Gordon is President of Phoenix Mediation, LLC. He is a Florida Supreme Court Certified Circuit Civil Mediator and a Florida Supreme Court Qualified Arbitrator. He’s a member of the Florida Academy of Professional Mediators and serves on the Florida Bar Board of Governors Advisory Committee. Mr. Gordon’s email address is lgordon@phoenixmediation.net.

I’m Sticking with Zoom for Mediation

By: William J. Cea
Published: September 2021

Zoom mediation was thrust upon us last year. At first, the technology was intimidating. I was skeptical about people being in different locations. Some have a concern that remote participation impacts the physical pressure and motivation to settle cases. In my experience, forcing people to travel, find parking, and sit for hours on end in conference rooms waiting for the mediator or meaningful settlement discussions creates frustration. This is particularly true in multi-party complex construction cases where parties may be in rooms for hours on end waiting on other parties to facilitate the process.

Also consider some of the reasons mediations sometimes get cut short. Participants have planes to catch, need to pick up children, tend to other business, etc. If settlement discussions are not progressing quickly enough for participants who must leave, the process is stifled. Imposing pressure on parties to make a deal out of frustration or fatigue is also counter to the core principle of mediation. Namely, self-determination and resolving claims without undue influence. Unfortunately, we also live in a time of escalating violence. Not forcing people who may already be under significant stress into the same rooms and facilities alleviates a safety concern.

For construction cases, there are usually multiple parties, and multiple insurance carriers. An issue that routinely comes up is whether out of state adjusters must physically attend. Zoom makes scheduling mediation easier since adjusters or other participants can attend without having to build in the added travel time. Zoom also permits parties that may have smaller scopes in the underlying construction project the flexibility to multi-task while still being fully accessible and engaged. I have conducted many in person mediations where parties with a smaller role become annoyed to have to sit in a conference for the better part of a day without much interaction with the mediator or say in the outcome of the negotiations.

As an example, a typical construction case could involve a property owner suing a contractor for construction defects, and the contractor asserting third party claims against subcontractors. If there are hot button or big-ticket claims that occupy most of the owner and contractor’s attention, there may be subcontractors that are sitting on the sideline for the bulk of mediation. Parties could be spending much of the day discussing roof claims, while a plumbing subcontractor is looking at his or her watch in a conference room waiting and wondering. The mediator can use his or her best efforts to assure the subcontractor and counsel that they are not forgotten, and yet, they may be wondering why they must be there instead of joining by a virtual room when needed.

The circumstances equally apply to other types of cases including personal injury, medical malpractice, real estate, and other commercial disputes where there are multiple defendants, cross claims, and third-party claims. Think of the added tension of either waiting for parties stuck in traffic or being the person stuck in traffic. How about the stress of wondering what else you have going on in your office or with other cases? What about the cost savings to the parties by reducing the overall time and expense of mediation? Might alleviating some of the additional cost and stress allow counsel and the parties to focus more on the case and think more clearly?

It is also easier to coordinate with parties that may be excused for portions of mediation when their attention is not required. The attorney contact for the party can be texted, for example, when their virtual room needs to assemble.  This has worked well for my mediations, and the parties appreciate the flexibility of being able to tend to other business.

Another benefit of using Zoom is when it comes to meals. Parties can plan for meals and personal comfort. Those who must eat and/or take medications on a schedule are benefited by not having to travel and attend in person. Again, the purpose of mediation is to facilitate resolution by self-determination and not attrition. Signatures can be procured on settlement documents in real time by electronic scan. Attorneys that may be participating from their own offices can multitask and work on settlement agreements during the day and potentially avoid the added time and fatigue that comes with waiting for someone to prepare an agreement at an in-person session. How many times do you spend all day at a mediation, and then must wait around, exhausted, for someone to type up an agreement?

There are no doubt opinions and reasons why people prefer in person mediation. However, just because the availability of in person mediation is returning, it doesn’t mean that Zoom is no longer an option. From my standpoint, I expect there will be a continued appetite for remote mediation and use of technology to avoid some of the stress, inconveniences and issues outlined above.

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

 


William J. Cea, Esq. is a Board Certified Construction Lawyer and Circuit Civil Certified Mediator. He is the past Chair of the Construction Law Committee and member of the ADR Committee and can be reached at (561) 820-2888 or wcea@beckerlawyers.com.

Arbitration Case Law Update

By: Donna Greenspan Solomon 
Published: July/Aug 2021

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

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

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

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

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

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

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

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


Donna Greenspan Solomon was the first attorney certified by The Florida Bar as both Business Litigator and Appellate Specialist.  Donna is a Member of the AAA’s Roster of Arbitrators (Commercial Panel).  She is a FINRA Chair-Approved and Florida Supreme Court Qualified Arbitrator.  She is also a Certified Circuit, Appellate, and Family Mediator.  Donna is a Member of the Florida Supreme Court Committee on Standard Jury Instructions—Contract and Business Cases.  Donna can be reached at (561) 762-9932 or Donna@SolomonAppeals.com or by visiting www.solomonappeals.com.

I Just Had the Best Mediation….

By: Kathryn McHale 
Published: June 2021

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

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

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

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

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

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

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

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

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

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


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

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

Arbitration as a Solution During and After the Pandemic

Published: May 2021
By: Daria Pustilnik 

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

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

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

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

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

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

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


Daria Pustilnik is a lawyer with Kobre & Kim, a disputes and investigations firm with offices worldwide. Daria has represented clients in their domestic and cross-border complex commercial disputes in state and federal courts; under the rules of the American Health Lawyers Association, American Arbitration Association, International Centre for Dispute Resolution, and the London Court of International Arbitration; and in arbitration-related litigation, such as cases pursuant to 28 USC § 1782. Daria is experienced in handling matters involving simultaneous arbitration, bankruptcy, civil and agency proceedings in multiple jurisdictions, such as the US, UK, BVI and Russian Federation. Before joining Kobre & Kim, she practiced at Shutts & Bowen LLP, and served as a law clerk for Judges Kenneth A. Marra and James M. Hopkins in the Southern District of Florida. Daria can be reached at daria.pustilnik@kobrekim.com or 347-899-0423.  

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

[2] Id.

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

Like Rollin’ the Dice in Vegas

Published: April 2021
By:  Tami Augen Rhodes

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

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

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

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

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

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

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


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

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

The Singapore Convention on Mediation and Its Impact

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

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

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

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

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

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

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

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

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

 


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

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