Author Archives: Scott Silverman (Retired Judge)

Mediators Who Never Say Die

Posted on by Scott Silverman (Retired Judge)
Scott J. Silverman (Retired Judge 11th Judicial Circuit)

Scott J. Silverman (Retired Judge 11th Judicial Circuit)

Scott J. Silverman, Retired Judge 11th Judicial Circuit, is a JAMS panelist based in the Miami, Fla. Resolution Center. He served for nearly 22 years on the bench and distinguished himself as one of South Florida’s highest rated circuit court judges.

Not long ago, I conducted a mediation involving a serious personal injury.  Given its severity, the plaintiff’s attorney opined that a reasonable jury could render a verdict in excess of the policy limits and therefore made a demand for them while contemporaneously threatening a potential bad faith suit.

The insurance company responded by offering a sum below, but near the limits.  The insured simply wanted the case settled to avoid any risk to his personal assets.  These dynamics are predictable and common.

The case didn’t settle at the mediation.  Instead, the plaintiff kept her demand open for another two weeks.  During this time, the plaintiff’s attorney assumed the insured would try to persuade the company to settle.

Two days after mediation, the plaintiff’s counsel requested that I contact the defendant’s attorney to find out whether he was encouraging the carrier to settle.  The insured’s lawyer answered and was not shy about expressing his disdain and bewilderment over my inquiry.  “The mediation is over,” he said.  His tone stunned me, but highlighted a topic which occurs frequently: When is a mediation actually over?

It’s Over When It’s Over

Lawyers prefer mediators who never give up.  This “never say die” attitude gets cases settled.  From a plaintiff’s perspective, persistence pays the client, and from the defense view, it pays the rent.

Under Florida law, mediation begins when the court orders it, when the parties agree to mediate, or as otherwise directed by law.  F.S. §44.404 (2012). Whichever event happens first is when the mediation commences.  It’s that simple.

The statute also states that a mediation ends when one of four events occur:

  1. A mediation terminates when the parties sign a partial or complete settlement agreement.  The agreement must be one which the parties intend to resolve the dispute and end the mediation.  If, however, the agreement is one which must be brought before the court for approval, the mediation ends when the court approves the agreement.
  2. A mediation also terminates when the mediator reports an impasse to the court or the parties.
  3. A mediation will also terminate upon a court order, court rule or other applicable law.
  4. Finally, so long as the parties appear at the mediation, they may terminate the mediation by their own agreement.  However, if the mediation involves multi-parties and one party gives written notice to all the others that it no longer intends to participate, the noticing party may withdraw. Termination, under these circumstances, affects only the withdrawing party.

The statute defines the start and finish of a mediation.  Hard work, patience, persistence and a healthy dose of tenacity can settle many cases. However, exceptionally difficult cases are settled by mediators who never say die.

Is Mediation the New Jury Trial?

Posted on by Scott Silverman (Retired Judge)
Scott J. Silverman (Retired Judge 11th Judicial Circuit)

Scott J. Silverman (Retired Judge 11th Judicial Circuit)

Scott J. Silverman, Retired Judge 11th Judicial Circuit, is a JAMS panelist based in our newly opened Miami, Fla. Resolution Center. He served for nearly 22 years on the bench and distinguished himself as a stellar judge and one of South Florida’s highest rated circuit court judges.

Mediation is no longer a rarity in our court system – it’s quickly becoming the most common means of resolving a dispute. In fact, one might argue that “going to mediation” has replaced “taking it to a jury” when parties are faced with an unresolved conflict.

The statistics speak for themselves. In Florida, for example, juries heard one percent of all cases in 2000-01. Only 10 years later, the rate plunged to .20 percent, which is one-fifth of a percent of all cases that went to jury.

What does this mean? For one thing, lawyers who have trained to present their cases before a jury are now well advised to add mediation preparation to their roster of skills. It only makes practical sense.

Some litigators may resist the need to round out their experience, or put everything into a mediation on behalf of their clients. It works against accepted litigation strategy to lay all the cards out at mediation, for example. Many will feel it is better to keep an ace up their sleeve and a trump card in their pocket should the case reach an impasse. But it is usually better to let the opposing side know all of your strengths. Besides, the holder of the so-called ace or trump card often times places more value on it than it is actually worth. If the information is so damaging to the opposing party, and statistics show that there is a more than 99 percent chance the case is going to settle, isn’t it best to make your best and most complete presentation?

For the pragmatic litigator, a working knowledge of the Rules of Evidence is crucial. These days, however, it is arguably even more important to have a better understanding of the Rules of Civil Procedure and negotiating tactics. Cases are more often won and lost in the caucus room than in the jury room. Therefore, prepare your case as if you are going to trial, but mediate as if you are in trial. It’s reality.