An Alternative to Litigation: Can’t Afford a Lawyer. Don’t Need a Lawyer? DIY Solutions, REALLY.

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If You Want to FIGHT…


If you want to fight, go to Court. If you want to bury your opponent in legal fees/cost or be vindicated with a sense of “I put you through same levels of frustration you showed me.” Then go to Court, right? However, if you want to find and create solutions that just “get it done” so you can move on and deal with other life circumstances. Or, if you need to resolve the conflict while repairing some aspect of the relationship, then mediation facilitated by a skilled mediator maybe what you need. And you can often do it yourself without a lawyer.


Sword-n-Sheid vs Bridge-n-Brick


We have been conditioned to believe that you can only find resolve in court. That the only way to get your legal needs met is when you go to court; and you can only do that if you hire a lawyer. While you should use and hire a competent lawyer who will vehemently represent you, most can-not afford competent representation. For those who have participated in the Court system, they will disagree with these comments; and add that after years of waiting, the decision they received rarely satisfied them.

Justice Jorge Labarga, Florida Supreme Court established a commission who conducted a three-year study regarding ‘Access to Civil Justice’. In its’ 2016 results the commission reported that the unmet civil legal needs of the disadvantaged, low and moderate-income Floridians are staggeringly high; mainly due to high legal fees. With over 100,000 members of the Florida Bar, I asked myself, “How is that possible?”


If You Want to Resolve and Move Beyond…


After over 20 years as a certified mediator (and trainer/coach) I have seen how advocates approach and use mediation the wrong way. Let us be straight and clear, mediation is a process that provides an alternative to the high-cost and uncertainty of Court. Mediators are ethically bound by Statute/Rule NOT to give legal advice (even if they are also an attorney) and can be grieved if they do. It is not court, yet many try to operate as if it is. When a skilled mediator knows how to address party needs/wants that mediator can help resolve conflict in a manner that Courts can’t; with or without an attorney present. A skilled mediator through conflict resolution techniques can help transition the discourse while achieving results where the interest/goal is to be done and move past that issue. Or, in many cases maintain a relationship past the dispute.


Stanley Zamor is a Florida Supreme Court Certified Circuit/Family/County Mediator & Primary Trainer and Qualified Arbitrator. Mr. Zamor serves on several federal and state mediation/arbitration rosters and mediates with the ATD (Agree2Disagree) Mediation & Arbitration, PA throughout Florida. As an ADR consultant & Coach he regularly lectures on a variety of topics from ethics, cross-cultural issues, diversity, bullying, and Family/Business relationships.
szamor@effectivemediationconsultants.com; www.LinkedIn.com/in/stanleyzamoradr
(954) 261-8600

An Alternative to Litigation: “Part 2, The Basics of Online Negotiation/Mediation: Creating Value Through COVID-19” By Stanley Zamor

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“Thank you for allowing me to be your mediator. If you can clearly see/hear me, please give the thumbs up signal… Thank you. You are all not muted and I will do my best to make this feel comfortable and familiar. Thumbs up if you have participated in mediation and/or negotiations using an online platform. Good. Well mediation is a process and technology allows for more flexibility… I am a third party impartial neutral without the authority to impose a decision/solution… All of the rules of confidentiality apply, and all named parties are present correct?… Now, there may come a time where I may need to meet with the parties and their attorneys privately, or the attorneys privately, or even in rare circumstances just both parties together…You are encouraged and empowered to create your own solution that best satisfies your needs today and craft a Mutual Acceptable Agreement… Are there any questions. Let’s begin.”


Part 2 – Creating Mutual Gains and Value


Recently I facilitated an online mediation where both attorneys expressed a frustration with the case and how the matter was being litigated during COVID-19. Everything was an issue, from document production requests/responses, to communicating with multiple revolving attorneys on the case. Nothing was consistent. The above are excerpts from my Mediator’s Orientation Statement (aka the “Opening Statement”) where I addressed the attorneys’ frustrations. IT WORKED!!!! During the process I used the online platform functions to meet separately various times with the attorneys alone and their clients. I was able to create trust in the process, between the attorneys/parties and build perspectives that led to shared mutual goals and a willingness to create an mutually satisfied agreement.


Not enough value is placed on the opening statement (and using an online platform makes is more difficult). Depending on the case & participant specifics, negotiators need to be flexible in their approaches and be prepared to reserve the “Harsh-Tactics” for face-to-face interactions or court!
So, as you negotiate through online platforms think about the following:


1) What do you want out of the process and how will you approach it differently than the usual face-to-face interactions?
2) How have you responded to conflict or the adverse opinions/positions of the other side?
3) How will you participate differently when online?
4) Prepare a brief and concise opening statement that also captures your expectation with online negotiation, AND YOUR LIMITATIONS!
5) Be honest about what you want, and where you are willing to go, save ego for court.


Stanley Zamor is a Florida Supreme Court Certified Circuit/Family/County Mediator & Primary Trainer and Qualified Arbitrator. Mr. Zamor serves on several federal and state mediation/arbitration rosters and mediates with the ATD (Agree2Disagree) Mediation & Arbitration, PA throughout Florida. As an ADR consultant he regularly lectures on a variety of topics from ethics, cross-cultural issues, diversity, bullying, and Family/Business relationships.


szamor@effectivemediationconsultants.com; www.effectivemediationconsultants.com

www.LinkedIn.com/in/stanleyzamoradr
(954) 261-8600

An Alternative to Litigation: “Preparing for Negotiations: Do a S.W.O.T. Analysis”

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By Stanley Zamor

So after three intense hours of negotiations where I shuttled between private rooms, I decided to bring the lawyers together in the hallway and I asked them, “Well we have tried for quite some time to find common ground and you both are debating business/legal positions that neither want to move from. If you allow me to, can I approach the remainder of our time in a different way? Both attorneys looked puzzled, yet agreed. I proceed to use an S.W.O.T Analysis approach and after 90 minutes they began to draft a mutually agreement.


So what is a S.W.O.T. Analysis? This acronym stand for Strengths, Weaknesses, Opportunities and Threats. In the late 1960’s Albert S. Humphrey developed this framework to better analyze business/organizational decisions-making. A S.W.O.T Analysis is a tool that can be used in a variety of industries.


The S.W.O.T Analysis has typically been used in a business and marketing context; I like to suggest that it can also be applied in a variety of areas including that law.  It is a helpful guide to analyze and review positions, strategies, ideas or approaches towards a challenging issue.  This article is limited and cannot describe the specifics and intricacies of creating a S.W.O.T Analysis (the literature online is abundant). Consider the following:


Strengths:


Strengths are internal factors that influence your position. List five reasons why you feel your position is strong. Explain why and how you feel that way.


Weaknesses:


Weaknesses are internal factors that influence your position. List five things that are risks for you. Why?


Opportunities:


Opportunities are external factors that influence your case or current position. Opportunities are not as easy to identify as some may think. You must spend time researching your business industry and be honest with yourself about your wants, needs and walk-away points.


1) Identify 5 positives that motivate you to proceed?
2) Identify any interesting trends or similar issues in your industry or legal position that you can imitate or rely on?


Threats:


Threats are usually external factors that influence how to proceed. To review what your threat are a variety of questions should be developed. The following are not exhaustive:

1) List 5 risks you face if you go forward with your position.
2) Should you not prevail as anticipate, does the loss change your position in the marketplace or industry? If so, how?
3) Will your reputation be harmed if you do not obtain a favorable result? If so how?
4) What is your financial risk tolerances?


Stanley Zamor is a Florida Supreme Court Certified Circuit/Family/County Mediator & Primary Trainer and Qualified Arbitrator. Mr. Zamor serves on several federal and state mediation/arbitration rosters and mediates with the Agree2Disagree (ATD) Mediation Group. As an ADR consultants he regularly lectures on a variety of topics from ethics, cross-cultural issues, diversity, bullying, and Family/Business relationships.


szamor@effectivemediationconsultants.com
www. effectivemediationconsultants.com
www.LinkedIn.com/in/stanleyzamoradr
(954) 261-8600