Brian Spector (Courtesy photo)
Mediators across Florida are used to resolving heated disputes — but this time, the argument is amongst themselves.
The two groups at loggerheads: those who believe everyone mediating cases filed in state courts should be certified by the Florida Supreme Court, and those who are vehemently opposed to that idea.
Rule changes proposed by the Florida Supreme Court’s Committee on Alternative Dispute Resolution Rules and Policy would make certification mandatory, requiring all mediators to complete training, pay fees and be subject to ethical standards that require mediators to avoid “coercion” and “improper influence.”
The proposal has attracted opposition from many mediators, certified and noncertified, who believe the standards would keep them from using the “evaluative” style of mediation that allows a mediator to offer opinions on the weaknesses of a party’s case. And lawyers looking for a mediator with specialized expertise wouldn’t be able to hire someone from out of state, those opposed argue.
“The proposals are radical because they would only allow litigants and their lawyers to select mediators that have been approved by the government, even though their mediator [of choice] might be an esteemed retired judge or someone with specialized knowledge in a particular area of law,” said Scott Silverman, a retired Miami-Dade Circuit judge who is now a mediator and arbitrator with JAMS in Miami. He is not certified but has been recognized as a top mediator nationwide.
Both those for and against the proposed amendments say they cut to the core the concept of mediation: self-determination, which includes the parties and their lawyers’ ability to select their own mediator.
“You can’t have self-determination where there’s coercion and unethical behavior in getting people to take a deal,” said Orlando-based certified mediator Lawrence Kolin, who has served on the executive council of the Florida Bar’s alternative dispute resolution section. “That’s why the rules exist.”
Kolin said he supports the proposed rule changes because they would ensure that mediators — who don’t have to be lawyers — are not operating in a “Wild West” without ethical standards.
The comment period for the changes ends Friday. The committee will then choose whether to submit the proposal to the Florida Supreme Court.
‘It Doesn’t Make Sense’
Miami mediator Brian Spector is helping lead the opposition to the proposed changes. He filed 19 pages of comments to the committee through his attorney, former Florida Supreme Court Justice and current White & Case partner Raoul Cantero.
Spector said he purposely let his Florida Supreme Court certification lapse so he doesn’t have to worry about being disciplined for using evaluative mediation methods.
He said he wants to use every tool in his toolbox to move the parties from a “state of denial to a state of rationality.” But certified mediators can’t do anything that might be seen as intending to coerce a party, which can be a tricky line to toe, Spector said.
“If I said to somebody, ‘I have to be honest with you, in my opinion, I wouldn’t bet a nickel on your side of the case,’ that would probably be inappropriate” under the rules for certified mediators, he said.
But parties and lawyers tend to prefer evaluative mediation over “facilitative” mediation that doesn’t discuss strengths and weaknesses or challenge assumptions, Silverman said.
“In my experience, I’m a much more effective mediator being evaluative than if I was strictly facilitative,” he said. “I’ve helped resolve a lot of cases that would otherwise be in litigation and on some judge’s calendar taking up a lot of court time.”
Litigators also want a mediator who knows the law well, said certified mediator Ronald Ravikoff of JAMS in Miami.
“Miami is a sophisticated litigation town,” he said. “It’s not just one-time, small cases. There’s a lot of very big business cases. … What if you have a very specific matter and the one really good guy is located in Chicago? [Under the proposed changes,] you can’t use him.”
Coral Gables attorney Leslie Lott, a founding partner of the intellectual property firm Lott & Fischer, said a lack of knowledge on a mediator’s part can drag out cases that could have been nipped in the bud.
“When we have had mediators who are not familiar with the substantive law, they have been misled by opposing counsel who have misunderstood some aspect of the law, with the result that there is no chance of resolution,” she said.
Mediator certification in Florida doesn’t translate to knowledge, she said — it doesn’t even require any mediation experience — and so she finds the proposed changes “counterproductive.”
“If you’ve got somebody whom courts have recognized by training and experience as eminently qualified … why would you need to get somebody who’s far less experienced than you are to give you a training course?” she said. “It doesn’t make sense.”
An American Bar Association task force has also opposed mandatory mediator credentialing, saying in a 2012 report: “Credentialing should not … operate as a de facto licensing system that bars non-credentialed persons from practicing as mediators generally.”
Several of those opposed to the rule changes say the ADR rules and policy committee did not explain why any amendment was needed.
“It ain’t broke,” Spector said. “Don’t fix it. And if it’s broke, where’s the proof?”
Miami-Dade Circuit Judge Rodney Smith leads the ADR committee that proposed the rule changes. He declined to be interviewed so as not to interfere with the discussion of the proposal, which will include a July 21 public meeting. But others familiar with the proposals said they stem from a desire to protect the public from unethical behavior.
“The concern has been that there are people who are not subject to any ethical standards who are mediating,” said Tamarac certified mediator Meah Tell, immediate past president of the bar’s ADR section. (The new section president, Bob Cole, declined to comment.)
Even if a certified mediator is facing a complaint filed with the state’s Dispute Resolution Center, that person can just let his or her certification lapse, Tell said.
“What does that mean when mediators are grieved against and then give up their certification?” she said. “They’re no longer subject to those ethical standards. So they can still go out and mediate.”
West Palm Beach certified mediator Alexander “Sandy” Myers said the proposed rule change isn’t all about lawyers.
“Under the present system, you could hire — not to demean anybody — but the two parties could agree to [hire] a ditchdigger to mediate their case,” he said. “They can agree to that. But the ditchdigger is not bound to any rules regarding ethics.”
Kolin said it shouldn’t be so hard for mediators to go through training and abide by the facilitative mediation method. If they want to offer off-the-cuff opinions, there are other alternative dispute resolution options, such as early neutral evaluation, he said.
“Mediation is designed for neutrality, and it’s a different process,” Kolin said. “It’s very heavy on not interfering with the parties’ decision, but rather using techniques and trying to drive those in a dispute to make their own decision on the outcome. It’s when you start to invade that self-determination with these heavy-handed tactics just to get a deal that results in problems.”