ADR CORNER
Be a Problem Solver – Plug the Drain
DEBRA A . JENKS
This article is inspired by my fellow ADR Committee member and Mediator , Alfred A . LaSorte , Jr ., and his prior advice “ To Succeed in Mediation , Focus on the Numbers .”
I do not know about you , but I went to law school to become a lawyer so I would NOT have to work with numbers . I did not relate to math – algebra , calculus , differential equations , geometry , trigonometry – and could not wait to get those high school and college classes over with . The most troublesome of my studies was that awful high school math class ( I think it was algebra ) and the quest to calculate the rate at which , or volume of , water flowing out of the bath tub given the rate at which , or volume of , water flowing into the bath tub . To me the cure was always simple : Put the stopper in the drain and turn the faucet off . Problem solved ! So much for that career in civil engineering .
As lawyers representing parties in disputes , lawsuits , or arbitrations we should be striving to resolve their problems as efficiently and effectively as possible . While many disputes may not involve money , most do . You may discuss or debate theoretical results or probable outcomes . But the fact remains that the resolution will have a finite financial value to it . What that number is can be left to strangers – Judges , Jurors , or Arbitrators - to decide , or can be determined by the parties in negotiated resolutions through qualified Mediators .
Clients who are not professional litigants may have very limited encounters with our adversarial legal system for civil actions . They most likely are not in a position to assess what should be a reasonable outcome . They generally cannot fund their disputes on any side of the “ versus ” case caption with an open checkbook . For many , engaging the services of a lawyer is the choice of last resort .
Frankly , I believe that leaving the resolution of most civil disputes over money in the hands of strangers is the least desirable route . I say this with no disrespect whatsoever to our fabulous Jurists , Jurors , and Arbitrators of Palm Beach County but with a realistic view of how unpredictable the outcome of the dispute could be months or years after the fact . While your clients ultimately may be required to mediate a dispute under statutes , court rules , or contracts containing mandatory dispute resolution procedures , there is no reason to delay in the planning for mediation with the goal of making that mediation successful , even if you mediate the matter more than once .
Picking the right Mediator is obviously critical . Talk to opposing counsel and see if you can agree . Talk to the potential Mediator and ask for references if you feel the need . Depending on the complexity of the matter , you may want a Mediator with subject matter expertise . If your client is a “ handful ” you may want a Mediator whose temperament is a good fit . Consider cultural or affinity connections . If your client representative is an insurance adjuster or corporate type who is not emotionally engaged , you may want a Mediator who can say ( and I do just LOVE this part with an indescribable sense of glee ), “ well , when I was on the Bench here is how I ruled on those arguments .” There are many great Mediators available so engage one that fits the needs of the case .
As Al pointed out , the numbers are a critical component of money-based claims and therefore the mediation process . How will you prove your client ’ s damages ? Can these damages be awarded by law or contract ? How much will your client spend to find out if damages will be awarded at all ? How much will your client spend to defend ? Can your client be awarded or required to pay attorneys ’ fees and costs ? Can you collect on a judgment or award for damages ? If you can collect , how long will that take and how much more will it cost ? The Mediator will ask these questions . Having the answers will go a long way toward bringing the settlement value of the matter into focus .
Instead of leaving the faucet running while letting the water drain away along with your clients ’ money , plug the bath tub and stop the unnecessary drain of your clients ’ resources .
P . S . Follow this link to the Florida Courts . org site for some great client focused resources regarding Mediation in Florida
https :// www . flcourts . org / Resources- Services / Alternative-Dispute-Resolution / Mediation-in-Florida
The views presented here are that of the author , Debra A . Jenks , Esq ., and not of her clients or any organizations with which she is affiliated . After earning her Juris Doctorate , she ultimately focused her practice in the financial services industry dealing with securities litigation , arbitration , regulation , and registration . She is an active practitioner in the Alternative Dispute Resolution arbitration arena and sits as an Arbitrator . As it turns out , she spends a lot of time working with numbers and statistical data .
Debra A . Jenks , Esq . is with Jenks & Harvey LLP ( www . jenksharveylaw . com ) and can be reached at 561-346-9854 or by e-mail at djenks @ jenksharveylaw . com .
For additional ADR tips and resources , go to https :// www . palmbeachbar . org / alternativedispute-resolution-committee /
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