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Mediation Blog

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

meaningful mediation

2022 Florida Civil Justice Changes

The Florida Legislature did some serious spring cleaning during the legislative session. Massive and unprecedented changes have now been implemented across the civil justice system. Governor Desantis declared the changes necessary to decrease frivolous lawsuits and prevent predatory practices of trial attorneys who prey on hardworking Floridians. These changes impact the ability of lawyers to make claims, how and when those claims can be made, and the recoverable damages.

2022 Florida Property Insurance Changes

First up, the Florida Legislature overhauled first-party insurance law through Senate Bill 2A, Senate Bill 2D, and Senate Bill 4D. The office of Florida's Chief Financial Officer published a summary of the changes.

The notable changes include:

  • Statute of Limitations:

    • Reduces the deadline for policyholders to report a claim from 2 years to 1 year for a new or reopened claim, and from 3 years to 18 months for a supplemental claim.

  • Attorney's Fees:

    • Repeals the one-way attorney fee provisions related to property insurance claims. This means that neither party can be awarded attorney fees in a property insurance claims lawsuit. Each party is responsible for payment of their own attorney fees.

  • Assignment of Benefits:

    • Eliminates the assignment of benefits for an insurance policy to a third party such as a contractor, roofer, or plumber. Prohibits the assignment, in whole or in part, of any post-loss insurance benefit under any residential property insurance policy or under any commercial property insurance policy issued on or after January 1, 2023.

  • Arbitration:

    • Permits arbitration clauses in insurance policies. Clarifies that insurance companies may only issue an optional endorsement related to mandatory arbitration with consent from policyholders. Companies must also offer a policy without a mandatory binding arbitration clause. A premium discount is required for policies with mandatory arbitration.

In short, homeowners will have less time to file a property claim. When doing so, homeowners will no longer be able to recover attorney's fees and as a consequence, their recovery and ability to make repairs will now be less. Homeowners will also now incur out-of-pocket expenses for all needed emergency and mitigation efforts at the outset of a claim as an assignment of benefits is no longer available. Finally, homeowners may have to go to arbitration to have their claim decided rather than court if they end up having an arbitration endorsement attached to their insurance policy. It is expected that as a result of the changes that there will be fewer property claims filed in the future and fewer attorney's making claims on behalf of homeowners.

2022 Florida Civil Remedies Changes

Next up, the Florida Legislature undertook tort reform measures when it passed House Bill 837. Governor Ron Desantis released a summary of the changes and asserted the changes were necessary to protect Floridians and safeguard the economy.

The notable changes are:

  • Statute of Limitations:

    • The time to bring a lawsuit based on negligence has been reduced from four to two years.

  • Comparative Negligence:

    • An injured party will be prevented from recovering damages if they are shown to be more than 50% at fault for their injuries. Previously an injured party could recover damages in all instances with a deduction for their portion of fault.

  • Attorney's Fees:

    • Essentially eliminates attorney fee multipliers and limits one-way attorney's fees against insurers to only specific instances.

  • Medical Damages:

    • Limits the evidence and amounts that can be claimed for past or incurred medical charges. Further limits the evidence and amounts that can be claimed for future medical expenses based on what an existing health insurance policy would pay or 120% of the Medicare reimbursement rate or 170% of the state Medicaid rate if there is no applicable Medicare rate.

    • For those services rendered under a doctor's letter of protection, the claimant must make certain disclosures before a claim can be made for the medical expenses.

In this instance, injured parties will have less time to file lawsuits and they will not be able to recover any damages if they are more at fault for their damages than the other party. Claimed attorney's fees are now limited as are the amount of medical damages that can be claimed. As with the property insurance changes, the tort reform measures are expected to reduce not only the number of personal injury claims that will be made but also the number that will be successful at trial due to the new comparative fault restriction.

The Takeaway

In the name of reigning in the number of lawsuits and the value of jury verdicts, the Florida Legislature has passed an unprecedented overhaul of the civil litigation system in a single legislative session. The motivation for these changes is to protect Floridians and safeguard the economy from the alleged danger of predatory trial lawyers. These legislative goals are to be achieved by limiting the time for parties to file lawsuits, reducing or otherwise eliminating legal fee claims, and restricting the type of claims that can be brought and the amount of damages that can be brought.

Only time will tell if the 2022 Florida civil justice changes will truly protect Floridians. Many questions remain unanswered. Will insurance companies reduce their premiums for homeowners as a consequence, or will they bankroll increased profits? Will all Floridians benefit, or will injured parties suffer more while others receive an underserved benefit? Is the problem frivolous lawsuits or is it frivolous defenses and the refusal to accept responsibility? Are trial lawyers predatory villains in this case, or is something else going on?

What say you?

Less conflict, more resolution.

Patrick Russell

Miami Florida Mediator

Meaningful Mediation is Ethical, Mindful, and Strategic

meaningful mediation

Updated: Aug 22, 2023

If you are a parent, I am sure you have either used or heard the phrase that sharing is caring. The funny thing is that sharing can also apply to mediation and your mediator. Let me explain.

Mediation Can Benefit from Direction

Imagine showing up in a computer store and observing a customer who has no idea how much money to spend on a computer and a salesperson who will not reveal the prices of the computers. Would you expect there to be a sale under those circumstances?

Here is another example. Ever try to go somewhere new without directions? Do you just hop in your car and hope for the best? Of course not! If you did, it would be a long, confusing, and frustrating experience.

But often that is what happens at mediation. Neither party will truly use the mediator as a mediator. By that I mean, involving the mediator as an active participant in the journey and sharing your ultimate settlement authority for where you intend to go.

A Typical Directionless Mediation

What results from lawyers and parties not sharing their ultimate settlement authority with the mediator? You have the same situation as driving without directions, you are in for a long, confusing, and frustrating experience.

Each party anchors their initial position with high demands and low offers. Each side feels insulted by the initial anchored positions and we can spend a long time getting back on track. From there, the process becomes a long and often endless exchange of small incremental offers until patience runs dry. Settlement brackets eventually get thrown out, and each side, including the mediator, has no idea where the mediation is going. Does this sound familiar?

Default Mediation Advocacy

Why do many mediations follow this same tired path of frustration?

First, it is a habit and apparently a time-honored tradition that most lawyers and parties are familiar with.

Second, many lawyers and parties come into mediation with a litigation mindset. A litigation mindset can include any or all of the following: extreme confidence or overconfidence; distrust and skepticism of the other side; a zero-sum I win-you-lose view; and a willingness to roll the dice and see what happens at trial. Often a litigation mindset will lead to a poker mentality for not showing any cards and an unwillingness to share information at mediation.

Do you notice the similarity between gambling and how mediation is often played? I would suggest that mediation can be played differently which would make it more efficient and effective. We can do better.

Trust Your Mediator and Share Settlement Authority

The prime directive for an ethical mediator is to protect the mediation process. That simply means that a mediator's sole responsibility is to ensure the parties are informed, that confidentiality is maintained, and they are utilizing self-determination to resolve their disputes.

Notice that I did not mention that a mediator's goal is to settle cases, although that would be a wonderful outcome. Rather, a mediator must utilize the confidential information shared by both sides to see if there is a pathway to resolving the case and generate creative solutions to do so when necessary. If that information and settlement authority is not shared, a mediator is working in the dark and without direction.

Conversely, if you place trust in your mediator and share your settlement authority you are now giving direction to the mediator and the mediation. The mediator is no longer in the dark and is armed with valuable information and tools to do the real work at mediation.

Armed with each side's settlement authority, a mediator can efficiently gauge whether a settlement is possible and save everyone a lot of time. Comparing the settlement authority from each side, a mediator can first determine if there is an overlap between the offers which means settlement, or if the parties are sufficiently close for a realistic resolution.

How to Share Settlement Authority

In the ideal world, both sides would share their ultimate settlement authority with the mediator very early during the mediation. This would compress the time of the mediation to a negotiation concerning the interests of the parties and not their positions.

At the very least, early on, lawyers and parties should trust the mediator with settlement authority at or near the edge of their ultimate settlement authority if they want to leave some room to make a deal at the end. Another option would be to at least indicate a range for settlement authority so the mediator has a sense as to where this might be going. In both cases, if done early on, you are giving direction to the mediation so that the process is more efficient than a typical directionless mediation.

Trust is key here. Lose the litigation mindset of distrust and skepticism. Trust the process. Do you believe that your mediator is ethical and has no agenda to serve one party over the other? In that case, an ethical mediator is charged with getting the best deal for both parties but the mediator cannot do that if the information is not shared. If you do not trust the mediator, then I would simply ask you why did you hire the mediator in the first place?

The Takeaway

Mediation does not need to be a directionless, time-consuming, or frustrating experience. To bring it full circle, remember that sharing is caring, and it is also contagious. If you share your ultimate settlement authority with me, know that I will advise the other side that I know your authority without revealing it and encourage them to do the same so we can be efficient and explore a resolution that works for both parties. Someone has to go first and trust the process. In most instances, the other side will reciprocate and we can get on to doing good work.

Less conflict, more resolution.

Patrick Russell

Miami Florida Mediator

Meaningful Mediation is Ethical, Mindful, and Strategic

meaningful mediation

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