Mediation is an effective way to resolve legal disputes that save the parties time, money and frustration. The parties are aided by a third party neutral such as Neil Robertson who is often selected for his subject matter expertise. If mediation is successful, the case can come to its end and the victim can receive a faster settlement. The typical personal injury case will involve the following steps:
1. Selection of Mediator
One of the significant benefits of mediation is that the parties can choose their own mediator. In litigation, the parties are generally assigned a judge at random. For example, parties involved in mediation can choose someone who has experience in personal injury law like Neil Robertson, who has an extensive background in personal injury defense litigation, premises liability and products liability. A person with this background has greater authority in the practice area and can discuss the real strengths and weaknesses of the case. Once the parties agree on a mediator, the mediator schedules the mediation at an agreed upon date, time and location.
2. Preparation for Mediation
Before the mediation session, the parties will meet with their attorneys, discuss the process and learn what to expect. The victim will compile all evidence that supports his or her version of events and extent of damages. The insurance company may review what similar cases have settled for or compile evidence to minimize the value of the claim. The mediator will also send a mediation and confidentiality agreement to the parties. It is important that the parties understand that the pr3Socess is confidential and that if they do not reach an agreement that they cannot repeat the information discussed in mediation.
The parties’ lawyers will usually attend mediation with their clients. However, the parties may meet with their lawyers to discuss strategy. The accident victim may discuss a possible settlement range. He or she should also discuss any particular needs for settlement funds, such as annual distributions or putting the money in a trust. The defendant may also want to discuss strategy with his or her lawyer, such as a potential settlement value and a point when the defendant would prefer to take the case to trial.
3. Opening Statements
At mediation, the mediator will introduce the parties to each other. Typically, the victim will appear with his or her personal injury lawyer. The defense attorney and claims adjuster will also attend. He or she will describe the mediation process and the ground rules.
Next, each party will give an opening statement about their side of the case. The victim’s lawyer may give an estimated value of the case and the reason for this value. The defense responds with its own opening statement and why the perceived value is less. The opening statement is helpful for the mediator to understand the respective positions and for the parties to hear the perspective and evidence from the other side of the case.
After the opening statement, it is common for the parties to split up into different rooms for the remainder of mediation or for a substantial portion of the mediation process. The mediator meets with one party at a time, identifies the party’s interests and obtains important information about the case. The mediator goes back and forth between the parties.
During these private caucuses, the mediator asks questions to learn more about the case. The parties talk confidentially with the mediator and the mediator cannot share this information with the other side unless explicitly granted permission. Therefore, the personal injury victim or insurance adjuster may reveal information about the case that may not help the party but that lets the mediator know about a possible concern or wiliness to settle.
During these private sessions, the mediator also points out weaknesses to each party’s side of the case. The mediator will also suggest compromises. He or she will get the parties to reevaluate their positions and remind them of the risk of continuing litigation, such as an uncertain outcome, more time and greater expense. During these sessions, the parties may share evidence with the mediator, such as an expert witness report or evidence that the victim may have exaggerated injuries. This evidence will help the mediator evaluate the strength of the case and how a jury would likely react to the evidence.
5. Offers and Counteroffers
One party will open by making an offer that he or she would accept to end the case. The mediator communicates this offer to the other party. The other party usually responds with a counteroffer. This process may continue for a while. The mediator continues asking questions and tries to get the parties to reach an amicable solution. Mediators use conflict resolution skills to get the parties to minimize points of controversy between them and reduce negative feelings.
If the parties are able to reach an agreement, the parties will sign a written agreement. This agreement will set out the terms of the settlement, including a dismissal of all claims in exchange for the settlement, the amount of the settlement, and the date or dates when the settlement funds will be disbursed. The parties’ attorneys prepare the necessary paperwork to file with the court to end the claim. The court will then dismiss the case once it has been resolved.
If the parties do not reach a settlement by the end of mediation, negotiations may still continue. The parties may come to an agreement at some point in the future. Even if the parties are not able to reach a settlement, they still gain valuable information at mediation, such as the strengths and weaknesses of their case, the evidence that will likely be introduced and how the parties will appear in front of a judge or jury. This added knowledge often helps the parties attain a more realistic outlook on their case.
Mediation can be one of the most efficient and effective tools for resolving a legal dispute. It can be especially beneficial in construction disputes.
CONSTRUCTION DISPUTE MEDIATOR IN MIAMI, FLORIDA
Mediation is one of the most effective ways to resolve construction disputes. It helps you avoid the expense and frustration of a long, drawn-out trial. In fact, all judges order both parties to try to resolve their dispute through mediation before permitting a construction dispute to move to trial. Parties are not required to come to a resolution in mediation, but they are required to try to do so.
To discuss your construction dispute options with a Miami, Florida construction mediator, call 305-448-7988 for a free consultation.
MEDIATION WORKS WELL IN CONSTRUCTION DISPUTES FOR SEVERAL REASONS.
First, utilizes the services of a neutral third-party (the mediator) to help guide the negotiation between the disputing parties. Mediators listen to each party’s argument and then help them explore the pros and cons of various resolutions. This provides flexibility and gives those most affected by the outcome control of how the situation plays out.
Mediation also helps to protect valuable business relationships. Disputes in the construction industry can be expensive and create a great deal of damage. In most cases, it will be in everyone’s best interests to try to resolve complex construction disputes as early as possible before more damage is done.
Neil Robertson’s goal is to help protect mutually beneficial relationships and resolve construction disputes as efficiently as possible.
COMMON TYPES OF CONSTRUCTION DISPUTES IN MIAMI, FLORIDA
Construction disputes tend to be incredibly complex. They might involve many parties, including business owners, contractors, subcontractors, construction managers, architects, designers, engineers, sureties, insurers, manufacturers, suppliers, lenders, consultants, accountants, etc. All of these people have a stake in the outcome of the dispute and they will likely affect how the resolution unfolds.
In most cases, construction disputes fall into one of the following categories:
- Project Delays: Delays threaten revenue, deadlines, and overhead. They can create lost productivity, which affect both owners and employees, contractors, and subcontractors.
- Problems with the Quality of Work: Claims related to the quality of labor or materials arise when contractors, subcontractors, or suppliers fail to meet certain standards of quality. This might include published design standards, industry standards, or performance standards.
- Nonpayment: Claims related to nonpayment (unpaid labor and/or materials) are one of the most common sources of problems in the construction industry. These are especially difficult to resolve without the support of a neutral third party.
- Liens and Bonds: Lien perfection and bond claim requirements tend to be complex. Not to mention the laws governing them are unique to each state. Notice requirements are incredibly strict and filing deadlines tend to be unforgiving.
LET NEIL ROBERTSON HELP
Neil Robertson is a construction mediator in Miami, Florida. His years of experience in the legal industry and working with construction clients make him a valuable resource for resolving your dispute. If you would like to schedule a time to discuss the benefits of construction mediation for your situation or you have questions, contact Neil at 305-448-7988 or email him at [email protected]
The role of the attorney in preparing for and participating in a mediation differs from the attorney’s role in preparing for and participating in other facets of a litigation. This is so because the goals are different. The goal in a litigation is to win, however, that may be viewed in the context of the specific litigation. In contrast, the goal of a mediation is not to “win,” but rather to walk away with a negotiated agreement, which may very well be a “win” it is own right. In order to enhance the likelihood of achieving a negotiated agreement, the attorney may wish to consider doing the following in preparing for and participating in a mediation.
In preparing for the mediation the attorney should:
- Explain to their client the weaknesses in their case.
- Remind their client about the costs and uncertainties in proceeding with the litigation.
- Help their client deal with and diffuse the emotional component, if any, associated with the dispute.
- Involve their client in preparing the mediation statement to be submitted to the mediator.
- Discuss with their client the client’s expectations in connection with reaching a negotiated agreement.
- Discuss with their client the obstacles to reaching a negotiated agreement.
- Discuss with the mediator obstacles that may exist in connection with reaching a negotiated agreement.
At the mediation the attorney should:
- In the appropriate circumstances, encourage their client to speak.
- During the joint session, the attorney should factually present their clients’ case.
- Following the attorney’s opening statement presenting their clients’ case, the attorney should modify their role and move away from being an advocate towards becoming a deal maker.
In preparing for mediation, the attorney should explain to their client the weaknesses in their case. In some circumstances, this may be the first time that the attorney has a frank conversation with their client about the weaknesses in the case. During preparation for the mediation, the client should also be reminded about the costs and uncertainties in proceeding with the litigation.
During these discussions, the attorney should address what their client would like to achieve in a negotiated agreement and what their client believes are the obstacles, if any, to reaching a negotiated agreement. Having the client express their desires and obstacles are important, because if the client’s desires are not met and the obstacles not overcome, a negotiated agreement will not be reached. Furthermore if the clients’ desires or obstacles to settlement are unrealistic, this will give the attorney the opportunity to begin the process of addressing the unrealistic expectations of the client, which process will certainly continue at the mediation.
In preparation for the mediation, it is also important for the attorney to help their client deal with and diffuse the emotional component, if any, associated with the dispute that has resulted in the litigation. The attorney can assist their client in this regard by showing empathy for what has occurred and simultaneously discussing with their client the practicalities, costs and uncertainties associated with the litigation and the benefits of reaching a negotiated settlement.
My view is that the time spent on discussing settlement and settlement options in preparation for an upcoming mediation is time very well spent. It is more likely to achieve a negotiated agreement at a mediation if there have been frank and open conversations between the attorney and their client prior to the mediation which tackle the benefits of settlement and explore and structure various settlement options and/or proposals. The benefits of settlement that should be discussed with the client include the following:
- the client will control the end result, rather than it being left to a judge or jury, resulting in reducing the uncertainty;
- the continued costs of the litigation will be eliminated; and
- the parties will be able to move forward with their businesses and their lives, including not having to spend anymore of their time involved in the litigation. In preparing for the mediation, it is very useful to prepare a mediation statement to give to the mediator in advance of the mediation. This serves several functions. It helps the attorney and the client analyze their case. Most mediation statements presented to the mediator only reflect the strength of your client’s position and do not reflect the weaknesses. Although it is uncommon, assuming the mediation statement is submitted confidentially, pointing out the weaknesses of your case to the mediator is often a good idea.
Realistically, there is not a single case that has been litigated that does not have weaknesses, so there is no reason to pretend that your case is any different. The attorney should involve their client in the preparation and review of the mediation statement and elicit the clients’ input. This is important not only because the client may know things about the case that the attorney does not even know, which is particularly true in a case that is mediated early, but also because it invests the client in the mediation process and helps focus the client on settlement alternatives in contrast to litigation strategies. In addition, the attorney should discuss with the mediator, prior to the mediation, obstacles that the attorney perceives exist in connection with reaching a settlement at the mediation. The mediator will be interested and appreciative in hearing about the obstacles prior to the mediation and it will also provide the mediator with the opportunity to consider approaches to be used at the mediation to overcome them.
In participating at the mediation, the attorney and the client’s roles are often times much different than at trial. At mediation, assuming that there is a joint session or sessions with the mediator, the attorneys and all the respective parties, then both the attorneys and the parties should feel free to speak. In my view, if the parties are comfortable speaking, then it is quite beneficial to let them speak and I suggest that the attorney’s encourage their client’s to speak. The parties speaking gives them an opportunity to say what is on their mind and in their heart, not in a technical sense but on a human level, we have all heard stories that cases sometimes settle by just having one of the parties hear an apology from the other party. Even if it is not that simple, which oftentimes it is not, having the parties speak at the mediation, both in the joint sessions and the caucuses, is nevertheless quite beneficial. Ultimately, if a case settles at a mediation, it is because the parties were willing to settle. If the parties speak at the mediation, they feel as though they have participated in the process and have expressed their desires and wishes and they are more likely to be agreeable to a settlement.
The attorney’s role in the joint session should be to present factually and unemotionally their client’s position. This is useful for a number of reasons. Probably the most important reason for this is to have the opposing party hear your client’s position. The opposing party may have never heard it because the information that they are receiving has been filtered by their own attorney. There are also benefits in having the mediator hear the opening statements, even in the case where the mediator has received a mediation statement in advance, and more importantly, in the case where a mediator has not received the mediation statement in advance. The mediator hearing the respective positions and observing the parties reactions provides the mediator with additional insights. During the separate caucuses, the attorney should be interacting with their client. In this regard, if the mediator is caucusing with the other side the attorney should use this time to privately discuss with their client the information that has been imparted to them by the mediator in connection with the private caucus the mediator previously had with the other side and what impact this information has on their own case and on reaching a negotiated agreement.
If the separate caucus session is one in which the mediator is with the attorney and their client, then the attorney should let the mediator lead the discussions and if the attorney has any questions, the attorney should ask them and the attorney should encourage their client to ask questions of the mediator and to interact with the mediator. Once again, it is more beneficial to have the client interact directly with the mediator to facilitate a settlement agreement.
During the mediation, the attorney should consider, under the appropriate circumstances, suggesting that the principals (i.e. the parties) meet privately in an attempt to reach a tentative agreement leading to a formal settlement. This technique may prove enormously valuable, particularly when you have sophisticated parties and the dispute is not emotionally charged. After all, it is the parties who settle cases and not the attorneys, nor the mediator.
–By Marc I. Sinensky,
Marc Sinensky has approximately 35 years experience in complex transactional matters and complex commercial litigation and is a Florida Supreme Court Certified Circuit Civil Mediator and a Florida Supreme Court Certified Family Mediator. The opinions expressed are those of the authors and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
 Where the attorney is representing the plaintiff, the conversations should include discussions about the risks and difficulties associated with proving both liability and damages and collecting on a damage award, if they prevail. Where the attorney is representing the defendant, the conversations should focus upon the risks associated with a judge or a jury coming in with an unexpected large verdict. The point to emphasize to your client is that there are enormous uncertainties in leaving the outcome to others if the parties do not reach a negotiated agreement.
All Content © 2003-2012, Portfolio Media, Inc.
For many of us, long-term care becomes necessary after a certain point. This is often treated as a last resort. Once the difficult decision is made to have a loved one admitted to a long-term care facility, other issues may arise between the family, resident and long-term care facility. Many long-term care facilities use mediation as an effective way to avoid litigation.
During mediation, the parties work together to try to arrive at a mutually agreeable solution. The mediator uses conflict resolution skills to enhance the communication between the parties. If the problem is particularly acrimonious, the mediator may separate the parties and filter the communication between them. The parties are encouraged to brainstorm solutions to the problem.
Because the mediator is chosen because of his or her subject matter expertise, the mediator will also have useful information to share with the parties that can help them better understand their case. He or she can point to recent case rulings or a similar case he or she presented, pointing out the weaknesses in the position.
The mediator serves as a facilitator between the parties, urging them to realize their own interests and reach an amicable agreement. If the parties agree to settle their case, the mediator provides a written contract that sets out the terms of their agreement. The contract can be enforced as a typical contract. If the case had already been filed in court, the agreement can be presented to the judge and made into a judicial order.
Families with a loved one in a nursing home may wind up in a legal dispute with a nursing home. When this occurs, the parties can work together toward a mutual solution or they can head toward the contentious and expensive process of litigation. Mediation helps the parties work together and avoid expensive court proceedings. Here are the basics that you need to understand about the mediation process in the nursing home setting.
Issues that Can Be Resolved with Mediation
There are a variety of legal issues that can successfully be resolved with mediation, including:
- Care provided
- Services made available to patients
- Billing issues
- Financial matters
- Allegations of nursing home abuse or neglect
Mediation may be entered into voluntarily by the parties or it may be required based on the nursing home contract or the court’s order.
At the beginning of the mediation process, the parties select an objective mediator. This allows them to select a mediator with subject matter expertise, such as someone who has worked in nursing home administration or a previous nursing home abuse or defense lawyer. The parties sign an agreement for mediation. What they discuss during the process is confidential and cannot be repeated or used against the other party if they are unable to reach a settlement.
The mediation process begins by the mediator explaining the rules of mediation. He or she describes the mediator’s role as a third-party neutral who will try to facilitate a settlement between the parties. He or she does not represent the interests of either party. The mediator will establish ground rules for interacting. The parties will then have their chance to provide an opening statement about their case. The parties will then work toward a resolution of the legal issues involved in the case either in the same room or separately with the mediator shuttling back and forth between the parties.