Second Annual Miami Mediation Mixer

Let's Mingle!

The Miami Mediation Mixer, sponsored by the Alternative Dispute Resolution Section of The Florida Bar is back. This social event is taking place on October 19, 2023, during Mediation Week at American Social, starting at 5:30 p.m.

This is a great opportunity for mediators and lawyers to mingle, share war stories, and have some fun. We will have appetizers for you, and the first twenty guests will get a free drink!

Come on down to meet your colleagues, make new friends, or just simply chill with the least conflictive Section of The Florida Bar!

Alternative Dispute Resolution Section

If you are frequently in mediation or are a mediator yourself, the ADR Section is for you. You can learn more with the Section Brochure.

The purpose of the ADR Section is to provide a forum for the discussion and exchange of ideas leading to increased knowledge and improvement of ADR skills for both participants and neutrals.

The ADR Section is the leading organization to recommend changes to laws and procedures relating to ADR in Florida as well as the leading organization for providing educational programs in that field.

My fellow organizer Megan Moschell and I are both Executive Council Members for the ADR Section. We will be available during the Miami Mediation Mixer to answer your questions about the Section, its benefits, and all the wonderful leadership opportunities that are available.

We hope to see you there!

Less conflict. More resolution.

Patrick Russell

Miami Florida Mediator

Florida mediation and dispute resolution

Meaningful Mediation is Ethical, Mindful, and Strategic

#mediation #adr #disputeresolution #mediationtips

Mediation Tip: Amending Trial Orders

Mediate at the Right Time

This mediation tip is a follow-up to my last tip on scheduling mediation. The idea is that doing the right thing at the wrong time is not helpful. For mediation, that means having your mediation at the right time when the parties are ready to mediate.

When are the parties ready to mediate? Whenever the parties have sufficient information to make informed decisions. Typically this means when the parties can evaluate their positions and are able to conduct a risk analysis. In short, the parties need to know their options and the relative risks associated with each option.

Case Management and Trial Orders

The Florida Supreme Court has made it a priority to reduce the burgeoning dockets of Florida Courts. Speed and efficiency are the stated goal since justice delayed is justice denied.

As it stands, all Judicial Circuits in the State of Florida issue case management and trial orders that set deadlines for certain procedural matters for a case. In this way, separate deadlines are established for when discovery must be complete, mediation scheduled, experts named, dispositive motions filed, and when the case should be ready for trial.

There are twenty different Judicial Circuits in the State of Florida, but there is no uniform case management or trial order that all the Judicial Circuits use. Even within a particular Judicial Circuit, some Judges may use their own case management and trial orders. The result is that you can have wildly divergent deadlines for the various procedural stages of a case depending upon what Judicial Circuit or even Judge you have for your case.

The Problem with Case Management and Trial Orders

All too often, the various case management and trial orders require mediation to occur within a certain amount of days from the issuance of the case management or trial order. Most of the time, the result is that mediation is scheduled before discovery is complete or experts are disclosed.

Why is this a problem for mediation? Because if discovery is not yet complete or if experts are not disclosed, the parties are missing critical information in order to fully evaluate their case. Without this critical evaluation, the parties are not able to make informed decisions at mediation.

There are simply too many unknowns, and the parties are left to guess or speculate as to certain critical components of a case, including liability or damages. In this instance, the parties cannot meaningfully conduct a risk analysis, and their ability to mediate is undermined.

Mediation, at this point, can end up being a mere formality, a check-the-box process. No meaningful negotiation can take place. Issue discussion is at a minimum. High demands meet low offers. The result is frustration, disappointment, and a lack of efficiency.

This is not my declaration. This is the feedback that I am routinely receiving from all lawyers in the same mediation. Not just Plaintiffs or Defendants but from both sides. This is a problem. And a curious problem indeed when the purpose of mediation is to assist in the resolution of legal matters so judicial efficiency and economy can be improved.

Amending Case Management and Trial Orders

Until a uniform case management and trial order is established in Florida that provides for mediation taking place after discovery and the disclosure of experts, the solution for lawyers is to file a motion to amend the case management and trial order.

Nothing prevents lawyers from filing a motion to amend a case management or trial order. Such a motion would simply request that a mediation deadline be after discovery and expert disclosure deadlines. The basis for such a motion is to enhance the prospect of settlement when the parties are in a better position to evaluate the case for mediation. Filing such a motion jointly with your counterpart will be a powerful statement that it is being taken in good faith and not for the purpose of delay.

Entertaining a motion to amend a case management and trial order is within the sound discretion of the Judge. However, it would seem that when framed properly, it would be in everyone's interest to amend the case management and trial order if it could lead to a resolution of a case without additional Court resources or time.

The Takeaway

No one wants to participate in a meditation that is pointless. Florida Courts recognize the benefits of mediation for helping to resolve disputes and reduce Court dockets. To maximize the utility of mediation, the parties should seek to amend case management and trial orders so that mediation is at the right time. Everyone benefits when mediation is at the right time and is meaningful.

Less conflict, more resolution.

Patrick Russell

Miami Florida Mediator

Florida mediation and dispute resolution

Meaningful Mediation is Ethical, Mindful, and Strategic

#mediation #adr #disputeresolution #mediationtips

Mediation Tip: Scheduling Mediation

Timing is Everything

As with most things in life, timing can be everything. The best-laid plans of mice and men will not succeed if the timing is wrong. Being at the right place but at the wrong time just does not work. So goes mediation.

I frequently hear from counsel on both sides, and often at the same mediation, that the time for the mediation was not right. They are not talking about the hour. The issue was with the date. Namely, the mediation was scheduled too soon, or insufficient information has been exchanged to mediate meaningfully. Why is this happening?

How Mediation is Scheduled

Mediation is either scheduled voluntarily by the parties or ordered by the Court.

When scheduled voluntarily, the parties are in control of picking a date. Typically when this is done, the parties are motivated to explore settlement and prepare accordingly.

Conversely, when the Court orders mediation, the Court establishes a deadline for mediation. Normally, the deadline for mediation is set forth in a case management or trial order.

The Problem with Mediation Orders

The deadline for mediation is usually a certain amount of days after the date of the Court order. Many Court ordered mediations are scheduled before discovery is complete, and experts are disclosed. As a result, the static deadline for mediation does not consider the parties' ability to mediate effectively.

The Timing is Wrong

The number one complaint heard at mediation is that a party does not have enough information to evaluate the case. This is a consequence of discovery not being complete and experts not being disclosed.

Without this critical information, the parties lack a meaningful ability to evaluate and complete a risk analysis. This is because the parties lack an understanding of liability and/or damages for the case.

Without information, parties are often unwilling to make decisions. Parties need data, options, and reasons to settle. When parties lack data and options, they are either not engaged or are left guessing and posturing their way through mediation.

Guessing and posturing during mediation is not an effective way to mediate or resolve cases. This is where you see arbitrary offers coupled with unsupported and undocumented positions. The other party is just expected to accept your position without any backup. A take it or leave it proposition. There can be no discussion and, consequently, no negotiation.

The Solution for Voluntary Mediation

The parties should schedule their mediation when the timing is right. The timing is right for a meaningful mediation when the parties have the necessary information to evaluate a case to explore settlement options properly.

When the parties voluntarily schedule a mediation, they should work closely together to ensure that all necessary information is exchanged so they both can make informed decisions. This is the easier option and one that the parties have control over.

The Solution for Court-Ordered Mediation

On the other hand, when the mediation is Court ordered, the matter is a bit more challenging. In those instances where mediation is to take place before discovery is complete or experts are disclosed, the parties have two choices.

The first option is for the parties to comply with the Court order and attend the mediation without exchanging discovery or expert disclosures. This will invariably lead to a "check the box" mediation that can be a short and frustrating exercise in futility.

The second option is for the parties to comply with the Court order and attend the mediation, but first, work closely with each other to ensure the needed information to evaluate the case is exchanged before mediation. This proactive preparation is the best solution for having an effective and meaningful mediation.

Some lawyers will argue that they do not have the time, resources, or desire to exchange discovery or expert disclosures earlier than required in the case management or trial order.

I certainly agree that this is not an ideal solution for trial lawyers. However, if you intend to settle the case, you will do what is needed to have an effective mediation.

That might mean getting out of your comfort zone to agree with your counterpart on a mutual exchange of discovery and experts before the ordered deadline. Remember, the deadline is just that, a deadline. Nothing prevents you from agreeing to do it earlier if you intend to genuinely explore settlement options at mediation.

Another option for trial lawyers with an existing case management or trial order is to file a motion with the Court to modify the deadline for mediation to come after the completion of discovery and disclosure of experts. The stated goal would be to have a more effective and meaningful mediation, and more information from discovery and experts is needed for that purpose.

Proposal for Case Management and Trial Orders

A better solution for all concerned is to have a uniform state-wide case management or trial order that schedules mediation after the conclusion of discovery and expert disclosures.

This is a more difficult task requiring the Courts and lawyers alike to agree to such a change. As it stands, there is no uniform case management or trial order in Florida. Sometimes, each circuit and even judges in the same circuit utilize different orders.

A uniform case management and trial order would ensure that the parties to mediation can do so effectively when they are armed with the necessary information to evaluate their case for settlement. Such an order could simply include a deadline that is after the completion of discovery and expert disclosures unless earlier agreed to by the parties or ordered by the Court. This is a simple fix that should satisfy all parties and contingencies.

The Takeaway

Scheduling mediation to be more effective and meaningful is all about timing. The time has to be right. The right time is when the parties have the necessary information to evaluate their case and explore settlement options. More often than not, this will require the completion of discovery and the disclosure of experts.

When engaging in voluntary mediation, the parties should work closely to ensure that the needed information to evaluate the case is exchanged before mediation.

In the context of a Court ordered mediation, when the mediation is to take place before discovery and expert disclosures, the parties will need to voluntarily exchange this information in advance of the mediation. If this is not desirable or possible, the parties can file a motion with the Court to modify the case management or trial order so that mediation occurs after the discovery and expert disclosure deadlines.

The best overall and long-term solution is to have a state-wide uniform case management or trial order that has a mediation deadline after the completion of discovery and expert disclosures. This is a practical and needed solution for effective and meaningful mediation.

Less conflict, more resolution.

Patrick Russell

Miami Florida Mediator

Meaningful Mediation is Ethical, Mindful, and Strategic

#mediation #adr #disputeresolution #mediationtips