Florida has the highest homeowner insurance rates in the country, the greatest exposure to hurricanes and hurricane damage and among the highest number of storm related lawsuits. In 1992, Hurricane Andrew devastated South Florida. The chaos in the legal system that followed provided the impetus for the “stake holders” (government, the insurance industry, The Florida Bar and consumers) to come up with a system to resolve storm related insurance claims quickly and efficiently. The mediation program that emerged from Andrew was deployed to resolve tens of thousands of claims that resulted from fi ..read more

Fall has arrived, at least according to the calendar. Summer vacations have come and gone, school has started, and the holiday season will start any minute. It is also the time of year when the law business roars back to life. Cases that have been pending and in the works are now ready to be mediated in the 4th quarter.   I urge you to take advantage of features available with Zoom to fortify your opening mediation presentations. The decision makers are all there at the mediation with the intention of negotiating a settlement. It is your only opportunity to talk directly to the parties th ..read more

There are 2 critical characteristics of a successful mediator – curiosity and patience. Mediations are successful when they are productive, i.e., they produce an outcome that allows the parties to move on. One of the most difficult challenges a mediator faces is engaging with parties and their lawyers and doing so with an open mind and a willingness to listen and to learn. Imagine the far-ranging problems created by a mediator unable or unwilling to let go of his vision of how he believes things ought to be. The challenge in every mediation is to avoid the temptation to jump to persuasion too ..read more

It is critically important that Florida quickly re-establish a state sponsored mediation program to deal with the tragedy brought on by Hurricanes Ian and Nicole. Let’s not reinvent the wheel. Following the devastation caused by Hurricane Andrew to South Florida in 1992, there were tens of thousands of insurance claims that would, under normal circumstances, have taken years to resolve. In response, a coalition of South Florida stakeholders, led in large part by the late Mel Reuben, devised a state-wide mediation program. It was supported by the Bar, the insurance industry and overseen by the ..read more

The courts are stepping in and ordering cases back to in-person mediation, returning to a one size fits all approach that makes it difficult for lawyers to decide how best to use mediation. It is not apparent that the judicial decisions to mediate in-person are based on either anecdotal or empirical evidence that in-person should, as a rule, be the norm. Neither is there any evidence that their decisions in individual cases are based on factors pertinent to that case.  Instead, let the lawyers decide whether to mediate in-person or online. They are in the best position to determine which ..read more

Hardly a day goes by without a news item that tells us that a company has gone outside the organization to engage a workplace investigator to get to the bottom of an allegation of bad behavior. Who said what and to whom? Who did what and to what purpose? What did they mean to convey by word or deed? In other words, it’s complicated. For the investigation to have value to your client, it must provide them, and you, with an impartial, in-depth understanding of the controversy. One of the distinguishing features of employment law is the prominent role of psychology. A primary task for the invest ..read more

The number of employment related claims continues to soar. They represent an important and unavoidable fact-of-life for employers and their lawyers. This email is an advertisement to let you know that I conduct sensitive internal investigations for employers facing allegations of: discrimination based on age, race, disability, religion, national origin, gender and genetics, disability accommodations issues, claims of harassment and retaliation as well as whistleblower claims. I have decades of experience gathering relevant information and then organizing it according to what can be extremely ..read more

Now that covid may finally have become a manageable fact of life, lawyers are faced with the task of creating a “new normal” for mediation. It is an opportunity that should take us beyond simply to Zoom or not to Zoom to considering how we can improve the mediation process, all the while remembering what was good about normal and what wasn’t. Are in-person mediations inherently superior to Zoom mediations? Many lawyers claim the visceral experience of being physically near others in a mediation allows them insight into the minds of those on the other side. That reminds me of George W. Bush’s f ..read more

It is an old cliché, but I think that it helps make an important point for lawyers to consider in preparing for a mediation. Don’t waste the many contributions your client can make when they take an active role in their mediation. First, the qualifier or small print. Not everyone is a good negotiator, and that is true for clients and lawyers. But for today’s purposes, let’s focus on clients. Some people hate to have to negotiate about anything. They wish that life was like grocery shopping; who would even consider negotiating the price of bananas at Publix? And yet, they find themselves involv ..read more

I received this question in connection with a recent mediation and I thought it useful to illuminate some important facts about mediation. “What are your thoughts on Zoom versus in-person?  I’m primarily a transactional attorney so I’ve only participated in a handful of mediations, however, my hunch is that an in-person may be more effective in forcing a settlement than Zoom…” Mediation is an occasional event for many lawyers whose practices do not regularly involve litigation. When transactional lawyers deal with controversy, mediation is not necessarily the “go to” way to resolve them ..read more