PBCBA BAR BULLETINS pbcba_bulletin_december 2018 | Page 6

ADR C o r n e r
Case Study
“A Good Mediator Can Make a Difference”
LAWRENCE GORDON
Mediation is the process by which
disagreeing parties come together with
a neutral mediator in order to attempt
to resolve their differences. The success
of this process depends heavily on the
attitude of the parties and the skills of the
mediator. Some mediators simply shuttle
offers back and forth between the parties.
However, a good mediator delves into the
meat of the case and encourages parties
to consider both the weaknesses and
strengths of their position. One of the most
common complaints made about mediators
by attorneys is that all they do is shuttle
offers back and forth. While this is true of
some mediators, it does not apply to all. A
good mediator who truly understands the
process and the heart of the issues can
make a real difference.
Every industry has its language and style. In
real estate, the key word is location, location,
location. In mediation, the key word is
listen, listen, listen. If one truly listens, the
opposing side will let you know what they
really want. What they really want can be
far different than what they say they want.
I sincerely believe that the vast majority
of cases can be resolved at mediation. It
often boils down to finding that button that
needs to be pushed to get the case settled.
Listening and communicating with all
parties is what usually leads to resolution.
Listening and getting to “YES” go hand and
hand.
I recently served as the mediator on a
case that involved a subrogation issue. A
corporation was suing a young man who
was a ProSe litigant. After doing my opening,
I chose to speak to the representatives of
the corporation first. When I asked if they
had done an asset check on the defendant,
the corporate representative quickly said
no and indicated that it made no difference.
They appeared more interested in teaching
him a lesson than recovering the $30,000.00
that they had lost. They did not know what
the defendant did for a living, if he was
married, had children, good credit, bad
credit or assets. They were at the mediation,
because it was court ordered and a desire to
punish the defendant. My initial meeting
with the corporate representative and her
attorney lasted about 25 minutes. It was
clear that I had to gather the appropriate
information needed to get this case resolved.
I had to find that button to push in order to
get this case settled. I excused myself to go
caucus with the ProSe defendant.
When I walked into the room, he was sitting
there with his face in his hands crying. He
said, “I don’t know what I am going to do.
I have nothing. “He drove an old car and
owned no assets. He was employed as a
delivery driver earning $13.00 an hour plus
whatever he earned by way of overtime.
He was married with two children, one of
whom was sick. The unpaid medical bills
totaled several thousand dollars. His wife
did not work outside of the home. Her
income if working would have been eaten
away by the cost of childcare. He was also
concerned about losing his job because of
the amount of time away from his job to deal
with the litigation. I went over every aspect
of his finances with him, monthly expenses
such as utilities, gas for car, clothing, rent
payment to medical providers, cost of food,
etc. were all laid bare. He was left with
$32.00 plus the $39.00 per month in food
stamps that they qualified for. Even if he
was willing to pay the entire $32.00 per
month to the corporation, it would take him
937.5 months to pay the full $30,000.00 that
the corporation was pursuing. How could
I get this case settled? Prior to going back
into joint caucus, the defendant had his
employer fax over his prior pay stubs.
We laid out the facts surrounding the
finances of the defendant and shared
the information with the corporate
representative. After accounting for every
dollar that he earned and the lack of assets,
my words were “you cannot get blood from
a stone”. This detailed info along with the
cost of future litigation made the difference.
This case settled. The plaintiff agreed to
drop the suit and absorb all cost. In other
words, to stop throwing good money after
bad. This case settled because I listened
and collected the information that the
corporation should have gathered prior to
litigation. Sometimes, the mediator has to
roll up his or her sleeves and do more than
just shuttle offers back and forth.
PBCBA BAR BULLETIN 6
Listen, listen, listen and give the parties a
reason to settle their case. A good mediator
can indeed make a difference.
For additional ADR tips and resources, go to
http://www.palmbeachbar.org/adr-2/
Lawrence Gordon is the President of
Phoenix Mediation, LLC. He has been a
Florida Supreme Court Certified Circuit
Civil Mediator since 2010. He has been a
Florida licensed adjuster for thirty six (36)
years. He is a former multi-term member
of the Florida Unauthorized Practice of
Law Committee. He currently serves on
the Florida Bar Fifteenth Judicial Circuit
Grievance Committee “D”. He was the first
non-lawyer to serve on the Board of Directors
of the PBC Trial Lawyers Association (now
known as the PBC Justice Association).