Mediation is the Food Truck of Dispute Resolution

Research in a variety of jurisdictions reveals that approximately one percent of filed civil cases reach trial, maybe less in some states.[1] Commentators note several likely causes: Loose discovery rules, stricter pleading, heightened summary judgment standards, and motion practice have reduced the “triable” issues. But, of course, the time and expense needed to try a […]

The 30/30 Piece on Mediation Advocacy

When I was a young associate and handling mediations on my own, I really didn’t get it. I mediated too late in the life of the case. I had no relationship with opposing counsel. Mediation advocacy is a lot like sex – for most people you sort of figure it out as you go along. […]

The Road to Uncovering the Hidden Truth in Mediation

If I have reasonably competent lawyers with equally motivated clients with access to the same information (and those are not trivial caveats), isn’t it fair to believe they will be looking at the same playing field albeit from different sides? Isn’t it reasonable to believe the case valuations on both sides should be like two […]

Attendance Rules at Mediation and Other Oddities

Few topics engender debate more than the issue of proper attendance at mediation. Even mediators do not agree on the rules and willingly tolerate a breach or some bad practice. There is a fair amount of problematic behavior largely arising from good intentions but myopic vision. We could start with the language of the written […]

An Open Letter to Judges in Florida: Why Non-Binding Arbitration Stinks and the Role of Early Mediation in Dispute Resolution

The passage of the Florida Mediation Confidentiality and Privilege Act in 1985 (§44.401 et. seq.) and the adoption of new rules of civil procedure in 1987 governing mediation changed the landscape of dispute resolution in Florida. Mediation became a fixture in the dispute resolution process following legislative action and then judicial implementation. However, over the […]

The Mediator’s Wish List

Now that the holiday season is in full swing, you are probably seeking holiday gift-giving lists. Most mediators want the same thing. Here is a list of things most mediators would like to receive in case you are still shopping for the holidays. Mediators would like attorneys to confer with one another in advance to […]

Happy Thanksgiving: A Message to Lawyers Young and Not So Young

Recently I spoke to the Young Lawyers Section of the Florida Bar and the presentation was “Ten Things I Wish Someone Would Have Told Me 30 Years Ago.”  This article flows from that presentation. Balancing work, family, personal interests, fitness,  and other commitments is difficult, and most commentators now suggest “balance” is probably the wrong […]

Special Problems in Settling Professional Liability Claims

In the context of mediation and settlement, professional liability claims present some challenges that warrant special consideration. Most professional liability policies contain settlement control clauses. Such clauses require the consent of the insured to settle, and if consent is withheld there are potential costs and exposures presented to the insured for failing to accept a […]