PBCBA BAR BULLETINS pbcba_bulletin_january 2019 - Page 6

ADR C o r n e r FREE MEDIATION JOHN SOCHACKI A judge has ordered mediation and a mediator has been assigned to your case. This mediator generally will have eight to twelve years’ experience, mediated over 3,000 cases, and know some law and facts of the dispute. Best of all – it’s free. Where can you receive this free mediation? In Palm Beach County Small Claims Court, which has jurisdiction over cases involving claims of $5,000 or less in damages (excluding costs, interest, and attorneys’ fees). If you have never been to Small Claims Court, then familiarize yourself with Rule 7, Florida Small Claim Rules. A copy is available for download from the Florida Bar Association. Upon arriving in court, the parties will check in with the court’s deputy sheriff. When called, the parties will either briefly see the judge, who may ask to hear the facts of the case and order the mediation, or the parties may be directly sent to mediation, then see the judge following the mediation’s conclusion. Typically, the court has two to four mediators who take cases in the order that the parties have checked in. Upon arriving to the mediation room, the mediator will generally follow the standard formal mediation process. The mediator will give the opening statement, informing the parties about the role of the mediator and that everything discussed in mediation is confidential, except for statements concerning the commission of a crime and the abuse of children or the elderly. (see Fla. Stat. §44.405 (2018) for other exceptions). Once the opening statement is concluded, the mediator will ask the plaintiff to describe the issue that caused the litigation, then listen to the defendant’s position. Often a mediator will call for a ‘caucus’, explaining that a caucus is a confidential private meeting, with one side at a time. The mediator cannot reveal to the other side what was said in the caucus, unless there is a waiver by the party as to any aspects of the conversation. A caucus aids in resolving a case because each side tends to indicate if an undisclosed issue exists, which can foster a settlement. If a resolution is not achieved, the judge will set a trial date. At trial, the prevailing party may be awarded a judgment, but then must seek enforcement. Pro se litigants are the norm in Small Claims Court. Pro se parties sometimes believe that if they prevail at trial, a judge will write them a check for the damages. An interesting concept indeed - but clearly misguided. Consequently, the mediator may inform the parties of what to expect in the case of a settlement or an impasse, whichever may be the case. to stay the case because the defendant has filed a “suggestion of bankruptcy” in Federal court. Small Claims Court in Florida is a viable alternative for Floridians and attorneys to bring minor court claims before a judge and take advantage of free mediation to increase the possibility of an amicable settlement. The small claims plaintiff will also get his/ her case heard much sooner than in County Court. Palm Beach County is fortunate to have a Small Claims volunteer mediator If a settlement is achieved, which occurs program in place where the mediators have in approximately seventy five percent the same skills and experience level as of the cases in Small Claims Court, the most paid mediators. The only difference is agreement is prepared by the mediator, that the volunteer mediators are driven only on a Court’s prescribed form, and signed by their willingness to serve the public as by both parties. The signed settlement well as the legal community. agreement is presented to the judge who also signs it, thereby dismissing the case, For additional ADR tips and resources, go to but retaining jurisdiction in the event that http://www.palmbeachbar.org/adr-2/. a party breaches the settlement agreement. If the settlement is breached, the non- John Sochacki is a graduate of University of Miami Law School and a Florida Supreme Court Certified breaching party notifies the court, who will Mediator in Circuit, Family and County Court and enter a judgment for the amount indicated Certified Arbitrator. He is an Approved FINRA Mediator in the settlement agreement as the “default” and Arbitrator. Since 2006 he practices exclusively in amount, which is usually the amount sought ADR. He was a volunteer Small Claims Court mediator in the 15th Circuit for 10 years. He can be reached at: in the complaint less any money already [email protected] paid. It is worth noting that a confidential settlement agreement is also possible in Small Claims Court, though unusual. By example, your client is owed $6,200. The cost of litigating in County Court for the $6,200 would include higher attorney fees, as greater preparation and time is required, and court costs. However, if the client is willing to limit possible damages awarded to $5,000 in Small Claims Court, it could be advantageous from a time and monetary perspective. Additionally, defendants are typically more willing to conform to their agreement knowing that, if they do not pay, there will be a judgment entered for the higher default amount. If one can proceed in Small Claims Court and reach a stipulated settlement, it can be cost advantageous, save time, and possibly foster maintaining the parties’ relationship. The courts encourage settlement and want the parties to mediate before they hear any dispositive motions, other than a motion PBCBA BAR BULLETIN 6