Business Monday

My view: Consider mediation; talk is cheaper than a lawsuit

SCOTT J. SILVERMAN
SCOTT J. SILVERMAN

Several weeks ago, 13 years of intense and expensive South Florida litigation ended. The case did not end in a courtroom, but in a caucus room at JAMS where I mediate. A lawsuit lasting more than a decade is remarkable, an amicable resolution with a skilled mediator is not.

Miami-Dade’s 11th Circuit is one of the busiest jurisdictions in the country. Last year, nearly 40,000 new cases were filed in the civil division. Our overworked judiciary managed to address many of those cases and its backlog and dispose of more than 69,000 cases — no easy feat. Interestingly though, during this same period, judges selected only 210 juries. In short, any case filed has a greater than 99 percent chance of resolving without going to a jury trial.

So, how do so many cases resolve without a jury trial? Mediation.

▪ No one likes a lawsuit: If you ever want to ruin someone’s day, serve that person with a lawsuit. No one wants to be on the receiving end of a process server’s hand.

Frequently, a person who files a lawsuit would rather not be doing it. Somewhere along the way, communications likely broke down or got scrambled between the perspective litigants. Innocent misunderstandings, lack of effective communications, and even unchecked bravado can lead to unnecessary legal actions with their attendant expenses. With that said, there are unquestionably some differences that can only be resolved in court.

▪ Talk before filing a lawsuit: Once a lawsuit is filed, the legal process takes over. Things can quickly get out of hand. Rare is the person who enjoys responding to interrogatories, requests for admissions, providing voluminous documents in discovery or sitting for a deposition.

Since commercial enterprises usually deal in contracts, they are in a position to minimize and even eliminate the chance of a lawsuit by inserting a provision in each contract that requires negotiations, followed by mediation, as preconditions to any legal action.

Those participating in the negotiation or mediation should be fully-versed, corporate executives authorized to resolve the dispute. They should be prepared to engage in a cost/benefit analysis to determine whether it is more economical to settle the case or to litigate it for three years — the average age of a case tried in 2013.

Mediating early on in a dispute is important. Parties tend to have greater flexibility before they incur large legal fees and expenses.

▪ The cost of mediation vs. the costs of litigation: In 2013, the National Center for State Courts’ Court Statistics Project, using data from 43 states, found the median costs for litigating an employment dispute and a contractual dispute through trial was $88,000 and $91,000, respectfully.

On the other hand, a highly skilled mediator can expect to receive roughly $250 an hour from each party. That number typically decreases when there are more than two parties.

Though a mediated settlement agreement is the goal that is often obtained, it is not a fait accompli. Mediation presents an opportunity to open the lines of communication and clear up any misunderstandings.

▪ When to mediate: Miami-Dade circuit civil judges require their cases to be mediated before any case can proceed to trial. Any party can request a judge at any time to compel mediation. This is a testament to its success.

In my opinion, the best time to mediate is any time. Optimal periods are pre-suit, just after the suit is filed, or just before trial. Regardless, any time litigants (prospective or otherwise) are formally talking and focused on the case, presents a good opportunity for resolution.

▪ Final thoughts: When there is a 99 percent chance your dispute will never go before a jury, it’s best to find a way to compel your opposition to come to the proverbial table to discuss settlement. Both parties should want to stop bleeding green. Mediation is an effective tool to end disputes. Use it.

Scott J. Silverman is a mediator and arbitrator at JAMS. He was a Miami-Dade County and Circuit Judge for nearly 22 years. He can be reached at judgesilverman@gmail.com

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