Arbitration Case Law Update

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 Donna@SolomonAppeals.com 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.

Harnessing Settlement Momentum for a Successful Mediation

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 Al@LaSorteMediation.com.

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

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.

To Sign or Not to Sign – There Shouldn’t be any Question

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 amyron@cagnetmyronlaw.com 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/.

Is It Ever Too Early to Mediate?

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 Al@LaSorteMediation.com.

 

Be a Problem Solver – Plug the Drain

Published: September 2022
Author: Debra A. Jenks, Esq.

This article is inspired by my fellow ADR Committee member and Mediator, Alfred A. LaSorte, Jr., and his prior advice “To Succeed in Mediation, Focus on the Numbers.” 

I do not know about you, but I went to law school to become a lawyer so I would NOT have to work with numbers.  I did not much relate to math – algebra, calculus, differential equations, geometry, trigonometry – and could not wait to get those high school and college classes over with.  The most troublesome of my studies was that awful high school math class (I think it was algebra) and the quest to calculate the rate at which, or volume of, water flowing out of the bath tub given the rate at which, or volume of, water flowing into the bath tub.  To me the cure was always simple:  Put the stopper in the drain and turn the faucet off.  Problem solved!  So much for that career in civil engineering.

As lawyers representing parties in disputes, lawsuits, or arbitrations we should be striving to resolve their problems as efficiently and effectively as possible. While many disputes may not involve money, most do.  You may discuss or debate theoretical results or probable outcomes.  But the fact remains that the resolution will have a finite financial value to it. What that number is can be left to strangers – Judges, Jurors, or Arbitrators – to decide, or can be determined by the parties in negotiated resolutions through qualified Mediators. 

Clients who are not professional litigants may have very limited encounters with our adversarial legal system for civil actions.  They most likely are not in a position to assess what should be a reasonable outcome.  They generally cannot fund their disputes on any side of the “versus” case caption with an open checkbook.  For many, engaging the services of a lawyer is the choice of last resort. 

Frankly, I believe that leaving the resolution of most civil disputes over money in the hands of strangers is the least desirable route.  I say this with no disrespect whatsoever to our fabulous Jurists, Jurors, and Arbitrators of Palm Beach County but with a realistic view of how unpredictable the outcome of the dispute could be months or years after the fact.  While your clients ultimately may be required to mediate a dispute under statutes, court rules, or contracts containing mandatory dispute resolution procedures, there is no reason to delay in the planning for mediation with the goal of making that mediation successful, even if you mediate the matter more than once.

Picking the right Mediator is obviously critical.  Talk to opposing counsel and see if you can agree.  Talk to the potential Mediator and ask for references if you feel the need.  Depending on the complexity of the matter, you may want a Mediator with subject matter expertise.  If your client is a “handful” you may want a Mediator whose temperament is a good fit.  Consider cultural or affinity connections.  If your client representative is an insurance adjuster or corporate type who is not emotionally engaged, you may want a Mediator who can say (and I do just LOVE this part with an indescribable sense of glee), “well, when I was on the Bench here is how I ruled on those arguments.”  There are many great Mediators available so engage one that fits the needs of the case.

As Al pointed out, the numbers are a critical component of money-based claims and therefore the mediation process.  How will you prove your client’s damages?  Can these damages be awarded by law or contract?  How much will your client spend to find out if damages will be awarded at all?  How much will your client spend to defend?  Can your client be awarded or required to pay attorneys’ fees and costs?  Can you collect on a judgment or award for damages?  If you can collect, how long will that take and how much more will it cost?  The Mediator will ask these questions.  Having the answers will go a long way toward bringing the settlement value of the matter into focus. 

Instead of leaving the faucet running while letting the water drain away along with your clients’ money, plug the bath tub and stop the unnecessary drain of your clients’ resources.

 

P.S.  Follow this link to the Florida Courts.org site for some great client focused resources regarding Mediation in Florida

https://www.flcourts.org/Resources-Services/Alternative-Dispute-Resolution/Mediation-in-Florida

The views presented here are that of the author, Debra A. Jenks, Esq., and not of her clients or any organizations with which she is affiliated.  After earning her Juris Doctorate, she ultimately focused her practice in the financial services industry dealing with securities litigation, arbitration, regulation, and registration.  She is an active practitioner in the Alternative Dispute Resolution arbitration arena and sits as an Arbitrator.  As it turns out, she spends a lot of time working with numbers and statistical data.

 

Debra A. Jenks, Esq.

Jenks & Harvey LLP

561-346-9854

djenks@jenksharveylaw.com

www.jenksharveylaw.com

Arbitration Case Law Update

Published: July/August 2022
Author: Donna Greenspan Solomon

Badgerow v. Walters, 142 S. Ct. 1310 (2022).  Employee terminated as financial advisor sought in state court to vacate FINRA arbitration award.  After removal to federal court, the district court denied employee’s motion to remand and granted employer’s application to confirm award.  Employee appealed and the Fifth Circuit affirmed.  The US Supreme Court granted certiorari and a nearly unanimous court reversed on jurisdictional grounds.  The Court explained that 9 USC § 4 of the Federal Arbitration Act (“FAA”) instructs federal courts to “look through” a motion to compel arbitration to the underlying claims and controversy.  Conversely, sections 9 and 10, which pertain to motions to confirm or vacate an award, do not provide for this “look-through” approach to jurisdiction.

Garcia v. Church of Scientology Flag Serv. Org., Inc., 18-13452, 2021 WL 5074465, at *1 (11th Cir. Nov. 2, 2021).  In dispute between two former members of Church of Scientology and church entities, the district court compelled arbitration before a panel of Scientologist arbitrators and subsequently denied the former members’ motion to vacate the award.   The Eleventh Circuit affirmed, finding that the former Church members had “agreed to a method of arbitration with inherent partiality and cannot now seek to vacate that award based on that very partiality.”  Justice Rosenbaum dissented, stating:

If a party to the arbitration can create the rules . . . as the arbitration progresses, it enjoys an insurmountable advantage that effectively guarantees its victory.  That’s not an arbitration; it’s just plain arbitrary. .  . and we should not stamp it with the imprimatur of the federal courts.

Juarez v. Drivetime Car Sales Co., LLC, 21-11972-CC, 2021 WL 5984924, at *1 (11th Cir. Nov. 29, 2021).  Federal court does not allow for an appeal from interlocutory order compelling arbitration; compare with Fla. R. App. P. 9.130(3)(c)(iv) (allowing nonfinal review).

Airbnb, Inc. v. Doe, 47 Fla. L. Weekly S100 (Fla. Mar. 31, 2022).  Vacationing couple sued AirBnb and unit owner after learning that owner had secretly recorded their stay.  AirBnb moved to compel arbitration pursuant to the clickwrap agreement that the couple executed in creating their AirBnb account.  The trial court granted the motion but the Second District reversed.  The Supreme Court quashed, finding that where an agreement incorporates a set of arbitral rules, such as the AAA Rules, those rules become part of the agreement.  And where those rules specifically empower the arbitrator to resolve questions of arbitrability, incorporation of the rules is sufficient to clearly and unmistakably evidence the parties’ intent to empower an arbitrator to resolve questions of arbitrability.

Hayslip v. U.S. Home Corp., SC19-1371, 2022 WL 247073, at *1 (Fla. Jan. 27, 2022).  The Florida Supreme Court answered in the affirmative to the following rephrased certified question:

DOES A DEED COVENANT REQUIRING THE ARBITRATION OF ANY DISPUTE ARISING FROM A CONSTRUCTION DEFECT RUN WITH THE LAND, SUCH THAT IT IS BINDING UPON A SUBSEQUENT PURCHASER OF THE REAL ESTATE WHO WAS NOT A PARTY TO THE DEED?

Palm Court NH, L.L.C. v. Dowe, 47 Fla. L. Weekly D108 (Fla. 4th DCA Jan. 5, 2022). FAA, rather than Florida Arbitration Code (“FAC”), governed arbitration of wrongful death claim against nursing home where resident’s care was paid in part by Medicare, thus involving interstate commerce.

BREA 3-2 LLC v. Hagshama Florida 8 Sarasota, LLC, 327 So. 3d 926 (Fla. 3d DCA 2021).  A “narrow” agreement to arbitrate claims or controversies “arising out of” a contract limits arbitration to those claims with a direct relationship to the contract’s terms and provisions.  In contrast, a “broad” agreement to arbitrate claims or controversies “arising out of or relating to” the contract broadens the scope of arbitration to include claims having a “significant relationship” to the contract, whether founded in tort or contract law.

Lennar Homes, LLC v. Martinique at Oasis Neighborhood Ass’n, Inc., 332 So. 3d 1054 (Fla. 3d DCA 2021).  Homeowner association’s right to proceed in its representative capacity in dispute with developer required compliance with individual members’ agreements to arbitrate.

Gambrel v. Sampson, 330 So. 3d 114 (Fla. 2d DCA 2021).  Where parties agreed to nonbinding arbitration pursuant to section 44.103, Florida Statutes, trial court was required to enter judgment on arbitration award after no party requested trial de novo within statutory 20-day deadline, even though court found paralegal’s calendaring mistake was due to an “excusable and reasonable misunderstanding.”


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 Donna@SolomonAppeals.com or by visiting www.solomonappeals.com.

Selecting the Right Mediator

Published: June 2022
Author: William J. Cea, Esq.

Pursuant to Rule 10.200 of the Florida Rules for Certified and Court-Appointed Mediators (hereinafter “Rules”), court appointed mediators are mediators selected by the parties or appointed by the court as the mediator in court-ordered mediations. The Rules provide ethical standards of conduct for certified and court-appointed mediators. In my experience, it is the parties who generally select the mediator.

How should the parties select a mediator? Counsel for the parties may look at factors such as availability, professional reputation, subject matter experience, fees and costs, mediation style and the like. Often-times, counsel for the parties may practice in specific areas of the law and have their “go to” mediators that they prefer.

For the most part, the attorneys will circulate a few proposed mediator names and agree on one. I would suggest that counsel take some time to consider whether the proposed mediators are right for the case. While a mediator is not required to have substantive knowledge of the type of case, that is one factor to consider. Other factors that may be more subtle include the mediator’s availability for pre-mediation caucuses, demeanor, and ability to be empathetic, as examples.

On the one hand, the Rules provide that the ultimate decision-making authority rests solely with the parties. On the other hand, the mediator should have the ability to reduce obstacles to communication, assist in the identification of issues and exploration of alternatives, and otherwise act as a facilitator of resolution. For example, as a construction attorney, I may be able to point out impediments to resolution of a case involving alleged defects. It may be the case where parties have expended significant time on liability but not damages. It is helpful to point out potential roadblocks to the attorneys, where possible and without breaching confidentiality, to avoid frustration during mediation. If the defense does not know how much the plaintiff thinks it will take to make repairs, it will create a hurdle to settlement. The Rules permit a mediator to provide information that the mediator is qualified by training or experience to provide, so long as it is consistent with impartiality and preserving self-determination. In other words, impartiality and neutrality are not mutually exclusive with knowledge and experience.

You may want to ask yourself questions, such as: What is the nature of the dispute and who has experience in the area? How much of a factor will demeanor be for the parties? Will the clients benefit from pre-mediation caucus sessions or other conferences to facilitate the process and is the mediator available? Will language or other cultural differences be an issue?

We have all heard attorneys and parties say they want a “strong” or “assertive” mediator, but what does that mean and is that the right approach to selecting a mediator? Perhaps the better question is whether the mediator is the right fit for the case? How will my client feel about the mediator and the process? What are the mediator rates and policies as to minimum fees and/or travel expenses? Does the mediator have the time to commit to parties to the extent necessary?

Another approach is to call prospective mediators to discuss availability and any concerns or priorities that you may have in mind. My presumption is that most mediators would welcome the opportunity to discuss a potential matter, their availability, and what you envision for the process.

The use of alternative dispute resolution procedures is on the rise. Whether mediation is voluntary, required by contract, or court ordered, the pool of qualified mediators has increased along with the demand. My personal bias, if I am allowed to say that, is to locate a mediator that has substantive experience in handling the type of issues and dispute and the availability to commit the time needed to the parties. For the most part these factors weigh more heavily in my mind, however, there are always more unique scenarios where the personality of the parties may require a different type or style of mediator.

The bottom line in my opinion is to expand on the traditional approach of recommending use of the “go to” mediator list and ask some questions, such as those outlined above. You may have a great relationship with a mediator and feel entirely comfortable with the style and costs, but will your client agree?


William J. Cea, Esq. is a Shareholder with Becker & Poliakoff, P.A., and is based in the firm’s West Palm Beach Office. Mr. Cea is a Board Certified Construction Attorney and Certified Circuit Court Mediator. Mr. Cea concentrates his practice in the areas of construction defects litigation, public procurement and mediation. Mr. Cea has lectured for several organizations, on topics such as mediation and construction law, including The Florida Bar, the Florida Association of Public Procurement Officials, Inc., the Construction Owners Association of America, Nova Law School, and the Palm Beach County Bar Association. He may be reached at (561) 820-2888, or via email @ wcea@beckerlawyers.com.

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

I Am a Mediator Because Peace Has a Value

Published: May 2022
Author: Mark Greenberg

12 years ago, I went through a divorce.  It was a long, expensive, and emotionally painful process for both of us. Pamela, my former wife, and I did not hate each other.  We simply were not going to remain married and had a few strong disagreements about how that was going to look moving forward.  Both of us were hurt, worried about our two children, and probably beginning to realize we needed to examine our own shortcomings and how that had contributed to the end of our marriage.  We had to mediate three times, with two different mediators, to settle our case. Finally, we each compromised, signed the settlement agreement, and began to move on with our lives.

Over time our wounds healed, and we made peace with each other.  Without ever expressly saying it (at first), we both acknowledged we had not treated the other person well during the marriage.  Most importantly, we forgave each other.

As we healed, we talked about how the divorce went.  We both realized that we had spent a lot of time, a lot of money, and expended an endless amount of emotion which could have been avoided had we settled earlier.  We realized that the mediator we used for the first two mediations was the wrong person.  She was, and is, a very good mediator, but she was simply the wrong person for our issues and personalities. Finally, when we brought in the right person, that made all the difference. She was able to help us break through the logjams and settle our divorce.  Otherwise, we probably would have ended up in trial, and we certainly would have ended up fighting for a long time after the trial.  That mediator allowed us to break down our barriers and work through the remaining issues to resolve our divorce.  I am not saying it was “amicable”, but rather it laid the foundation for us to become amicable over the next several months.  That mediator therefore provided both a legal benefit in helping us settle, and an emotional benefit for allowing us to recognize where each person was coming from and move forward peacefully over time.  That peace was a huge advantage for our kids, who could at least see us co‑parenting well, even if we were no longer married.

In short, I learned that Peace Has a Value.  The peace that came from the divorce being final, the peace that came from being able to move forward with our lives, and the peace that allowed us to wake up and not have the weight of the case hanging over us every day.  When we left the final mediation, we each of course thought we had given up too much. But over time, we both were happy we had stopped the bleeding and were able to move forward.

It was after that I became certified as a mediator, and that is now all I do.  Mediation is a wonderful way to provide real value to people who come before you, while making a living.  I know that even when people leave a little disappointed in how the case settled, 2 weeks later they are usually very happy to have it off their plate or to have closed that file, and to have moved on with either their lives or to the next case. Attorney’s clients are happy, and that leads to more clients for that attorney.

Financially, we estimate each settled case saves between $200,000.00 and $250,000.00 in legal fees versus going to a jury trial. In 2021, our average mediation cost was $1,500.  $200,000 divided by $1,500 equals $133 saved for every $1 invested. That is a return on investment (“ROI”) of 13,000%. It is the best investment the litigants can make.

I would like to clear up one myth about mediation though.  If a case does not settle, I do not go home, relax, and forget about it as if it never happened.  If I think that case could have settled, I do the same thing I did after I lost a trial or had a big hearing go the wrong way.  I do a complete postmortem on it, thinking about what I could have done differently, how I could have asked different questions, and thinking it through. I do this so I can be better the next time, and most good mediators I have spoken with do the same thing.

Do we spend all weekend preparing for trial?  No.  But we do think through how we could have helped you avoid spending that weekend preparing for trial, and hoping the next time we are able to do that.


Mark Greenberg is the founder of Breakthrough Mediation. He has tried over 100 cases to verdict, representing both Plaintiffs and Defendants. He now mediates cases throughout Florida, saving clients over $25 million dollars in legal expenses during 2021, while helping them find peace in the resolution of contentious disputes. www.btmediation.com

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

To Succeed in Mediation, Focus on the Numbers

By: Alfred A. LaSorte, Jr.
Published: April 2022

Litigation is stressful, risky and expensive. A form of civilized combat. Understandably, parties often view litigation, and form expectations as to its outcome, through an emotional lens. They bring all sorts of unhelpful motivations into the mediation room – a desire for revenge perhaps, or a need to prove they were right, or that the other side was wrong, or to prevail as a matter of principle.

Objective compromise, so crucial to successful mediation, requires a different analysis on both sides – one focusing on numbers, not feelings.

An auto accident case about compensation for serious physical injury. A suit between former business partners over profits. A manufacturer’s suit over an unpaid invoice. These cases have one thing in common – the only relief a court can grant is an award of money, not an apology.

At mediation, the plaintiff will rarely ever see an offer as high as their “best day” in court, and a defendant won’t likely see a plaintiff agree to just go away. Mediation is not about “best day” results – it’s about compromise. Objectively analyzing the numbers, on both sides, facilitates this compromise and gets cases settled.

Here’s a simplified example: A plaintiff suing a defendant for $100,000, with a more or less 50% chance of winning. Doing the math, a settlement in the $50,000 range (i.e., 50% of $100,000) should make sense, since that equates to the plaintiff’s odds of winning, and defendant’s odds of losing. (If the odds of winning were 30%, then the $30,000 range would be more realistic.)

I can already hear your objections. “Where’s your crystal ball? Nobody can predict result percentages with any accuracy” and “What about fees and costs? You forgot to factor them in.”

Hey, I did say “simplified” example, remember? And you’re right. Anything can happen at trial. But a case that survives to the point that it’s now in court-ordered mediation has some chance of winning. And no case is such a slam dunk that its chances are 100%. The hard part is reliably determining the range.

After some discovery, most trial lawyers develop a general feel for a case’s chances. Is it 50/50? Better than that? Worse? Do your best to come up with a range.

In my nearly forty years trying cases I had many client conversations where “better than 50/50” or “less than 50/50” chances were discussed. Whatever you conclude, discuss it with your client, whether plaintiff or defendant. And be candid that slam dunks in court don’t exist. Ever.

If your plaintiff/client isn’t willing to discount their “best day” number for the risk of loss, it’s time for a serious discussion about the things that can go wrong in a trial. Let’s face it – few cases have a 90% chance to win or to lose. Or 80%, or even 70%. But clients don’t know this unless you tell them. They all think they’re going to win!

If your defendant/client refuses to pay a single dollar “on principle,” it’s time to explain to them that moral victories are few and far between, and that they are expensive.

Which leads to your other objection – factoring legal fees and costs into the equation. This factor actually makes settlement easier. We commonly mediate cases where the fees on both sides will exceed the amount in dispute if the case doesn’t settle. In my $100,000 example, if the fees will exceed $50,000 on each side, wouldn’t it be crazy not to settle before both sides spend all that money? Everybody “wins” when these $100,000 in extra fees are avoided. (Okay, everybody but the lawyers.)

Even in contingency cases, with a law firm advancing the costs, a well-placed defense settlement proposal exposes the plaintiff to the risk of owing defense fees if they lose. A mediation settlement avoids this risk entirely.

I submit that, as your client’s counsellor, it’s your job to make sure they understand all of this before the mediation begins. How do you persuade them to realistically factor in the risk of loss and their inevitable out-of-pocket costs? It’s not that difficult if you are willing to frankly discuss the case with them.

So talk about risk of losing. About how witnesses forget, or don’t show up. How judges and juries can make mistakes. How there are a hundred things that can go wrong and hurt their case.

Talk about the costs of litigation. Give a frank estimate of the costs through trial. And appeal. Put pencil to paper with your plaintiff/client and estimate the net “dollars in their pocket” from a trial. Or with your defendant/client estimate what a loss will cost them. And do it before mediation starts.

The mediator can help you with this. But it must start with frank discussions with your clients well in advance. A client with unrealistic expectations may not suddenly get realistic once mediation commences.

So do the math with your clients. You will do them a tremendous service if you help them become objective, thereby helping them reach a fair 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.