“Let’s Make A Business Decision, Let’s Mediate”

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“Let’s Make A Business Decision, Let’s Mediate”

By Stanley Zamor

(July 2017)

“Greg, if you would have better advised me of the extensive cost of this litigation, I might not have let it go this far. But now, I am so financially committed, I have to see it through, even though it may bankrupt me…” I stated, “Although you are heavily engaged in litigation, now that you are at mediation, you have a real opportunity to reduce further expenses while reaching a resolution you create…”  Unfortunately, this was a real statement made by a Plaintiff expressing his frustration to his attorney.  The mediation ended, and resulted in a settlement 3 hours later.

The Real Cost of Litigation

We live in a great country where our legal system is not perfect, but is available to those who choose to use it.  So how expensive is litigation anyway? Um, although the initial cost of a civil suit varies depending on the lawyer you choose and the type of case, it is not unusual for either party to spend close to $100,000 in a contentious business lawsuit.  How? Well, a brief example is when taking the deposition of five people, who are potential witnesses:

*  Attorney’s replenishable retainer of $5,000, used for initial costs/filing and commencing discovery of the lawsuit;

*  Attorney charging $300 per hour – research and preparation for five, eight hour witness depositions – $2400 x 5= $12,000.  Further consider the cost of travel and deposition transcripts (usual cost $1000 each x 5= $5,000);

*  Other basics litigation costs include (but is not limited to) hiring expert witnesses; research/study of reports, analysis, or other projects ordered by the court; attorney hourly fees; copy fees; computer legal research services; secretarial and paralegal fees; external consultants, and specialist fees; private investigator, electronic discovery maintenance, and trial demonstrative aids, etc.

 

The Truth Is Real

Unfortunately, even though our civil litigation system is considered to be the best in the world, it is so costly, and the rewards (if any), are sometimes too far delayed to enjoy the benefits.  So that is why mediation is available and the courts are encouraging parties to mediation early as an alternative to trial.  In many areas of the law, like in Condo & Home Owners Association cases, you must mediate before you litigate.

The Cost of Mediation

Contrary to litigation mediation cost fractions less and mediating before you file a lawsuit can save you tens of thousands of dollars.  The comparative math is:

*  Typically, mediators charge $300 per hour for five-hours. (shared between the parties) So, $1500, and you are done!

*  If you have an attorney, add the cost of their time too. Regardless, your cost can be under $3000 and you’ve reached a resolution that you’ve created and controlled. When you litigate you will triple that cost for the uncertainty of an outcome.  Hmmmm…  Make a business decision, you have options.

 

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 has a private mediation and ADR consulting company.  He regularly lectures on a variety of topics from ethics, cross-cultural issues, diversity, bullying, and Family/Business relationships.

 

szamor@i-mediateconsulting.com

www.i-mediateconsulting.com

www.LinkedIn.com/in/stanleyzamoradr

(954) 261-8600

 

“Getting What You Want in Mediation”

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“Getting What You Want in Mediation”

By Stanley Zamor

(January 2018)

Set The Stage

As the parties entered the room, I stood smiling and welcomed each person as they took their seat around the conference table. I stood at the head of the table and observed the perfectly quaffed group of 10, they all seemed to share the same blank expressionless face. Something recently happened… And that something was not good.  As each side gave their opening statement they mentioned the results of a Summary Judgement hearing that took place just 2 hours prior to the commencement this mediation.  The judge made a partial ruling that both parties claimed to give them some sort of victory.

In brief, for over 3 years of litigation multiple businessmen, in two consolidated cases, spent millions of dollars to prominent law firms to keep pushing their positions until the eve of trial.  But now, after long eloquent statements outlining how the law supports their position(s), I asked them something that seemed to perplex the entire group.  I asked, “Now that we have heard each perspective and how right each party thinks they are; what do you want?…” They all agreed that they wanted finality and (read below for the rest). I said, “Good.  Then let’s get to work…”

At The Ready…

One of the difficult defining points of mediation is to reduce the barriers of communication.  Litigation is innately adversarial in tone and process.  Mediation conversely encourages collaboration while reframing the tone of the dispute, to where parties may feel able to design their own resolution.

Often, once a case is filed in court, disputants never see each other outside of a court related event.  Since mediation is an informal process, disputants have an opportunity to use their own words during mediation in a conversational tone, and not only in the usual adversarial posture.  A skillful mediator can use that opportunity, to shape the discussion to where both parties can feel heard/good about being flexible and seeing where resolution may creatively lie.

Mediation will not replace litigation, it is simply an option that works when parties need an alternative.  Legal rights and duties are important but many times when parties are given a neutral space to express what they want, they are able to resolve issues themselves.

Their Wants:

So, what did these disputants want, and did mediation give to them?  The following are a few of the things that the disputants told me they wanted and after a 5 hour mediation, they created an agreement that was satisfied with:

  • Someone to admit wrong and to be held accountable,
  • To be able to move forward and beyond that business dispute,
  • To take the lessons learned and establish better systems to limit/protect themselves from future litigation,
  • To recoup/cover a portion of monies spent on legal fees,
  • To make more money, smarter.

 

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 has a private mediation and ADR consulting company.  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

Workplace Sexual Harassment: #MeToo & Finding A Resolution Process

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#METOO Trends and Highlights

 

IN the past few months social media and every industry has been a flooded with allegations of sexual harassment.  The silence has been broken, and the once considered “too powerful” and untouchable are being “handled” and striped of their positions/power.  Sexual harassment is not industry specific, it is not new and the skeletons in the Walmart-size closets are busting out.  Here are some statistics from the U.S. Equal Employment Opportunity Commission and news polls:

 

  • 75% of all workplace harassment goes unreported.
  • 30% of individuals who were harassed spoke immediately to their supervisor, union representative, managers or the Human Resource department.
  • “…sexual harassment training is easily mocked – and often brushed off…”
  • According to the Washington Post “between 1997 and 2014 the US Treasury” paid 235 awards and settlements worth approximately $15.2 million for workplace violations on Capitol Hill.

 

No industry is safe from sexual predatory behavior. And the behavior has been allowed to permeate the business/entertainment/ culture.  Even the EEOC states that yearly training is not enough and is usually only focused on avoiding legal liability.  After doing many EEOC mediations which lead to reviewing thousands of employment manual pages, state and federal rules, regulations, and policies, I am comfortable to say that there remains to be A LOT of work done if we wish to change the sexual harassment culture.

 

Finding a Resolution Process

 

We know that victims are ignored and paid off; and litigation and hefty settlements have not prevented predatory behavior. So what is the answer, and what should be considered when seeking arbitration and mediation as alternatives?  Honesty, I am not sure, but I am confident that the Victim-shaming, fear, and the industry-cultural norms that allowed sexual harassment to go unchecked and underreported need deeper and broader systemic solutions.

 

The following are brief points when considering other resolution options:

 

Arbitration, Akin to Litigation –  

  • Engaged as per employment contract provision(s), due process paranoia is a challenge.
  • Awards are usually confidential.
  • Victims often relive the incident like at a trial.
  • No appeals process.

 

Mediation – Pros & Cons (limited and not exhaustive)

  • Pro- Empowerment- Many victims want an opportunity to face their abuser and ask “Why?”
  • Pro: Confidentiality- Victims are often ashamed and do not want, to have to relive the event multiple times.
  • Pro: Time – Much faster than litigation and arbitration.
  • Con: Confidentiality – Mediation and the possible agreement, are confidential. The abuser often gets a chance to silence the incident/victim and is not truly held accountable.
  • Con: To Settle – Should a victim compromise and settle with the abuser?

 

 

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 has a private mediation and ADR consulting company.  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

 

 

“Selecting a Mediator? Sword-n-Shield vs Bridge-n-Brick”

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As the parties and their attorneys were signing their settlement agreement they were all smiling and speaking with a tone of exhaustive relief. One of the attorney stated, “Who would have thought we’d be here…” Smiling, I already knew where this was going, I said, “What do you mean? What’s wrong with here?” He replied, “Well, we’ve been litigating this case for three years so trial seemed inevitable, but we finally resolved the case and we are all here cordial and satisfied.” I responded, “Well from what I’ve learned, the lack resolution and conflict boiled down to lack of communication and the ambiguity in the law.” They all nodded and I congratulated them for not focusing on their legal arguments and focusing on what the parties wanted and needed to move beyond the dispute.  

Have You Heard?

You’ve probably heard that, “…the selection of an attorney is important and shouldn’t be considered lightly…” But do you know that the selection of a mediator is just as important and possibly even more difficult? Why? Well contrary to the Attorney’s Oath which includes how they are to vehemently advocate for their clients; the Florida Rules for Certified and Court Appointed Mediators describes the mediation process and ethical considerations as (but not limited to), “… a neutral and impartial third person acts to encourage and facilitate the resolution of a dispute without prescribing what it should be…their role is to reduce obstacles to communication…” So, a mediator’s role is quite different than that of an attorney. The mediator must be, and maintain, the appearance of being unbiased throughout the process.  This is more challenging than you might think, especially since many mediators travel within a variety of social/professional circles.  

Sword-n-Shield vs Bridge-n-Brick

Attorneys are adversarial by training; they either engage or defend within the litigation context.  Conversely, mediators are supposed to be peace-bridge builders and collaborative.  Since a mediator’s focus is on building consensus while exploring solutions; they should not be primarily focused on being persuasive and litigious.

5 Tips When Selecting a Mediator

So how do you select a mediator?  The following are initial suggestions you may want to consider (this is not an exhaustive list):

  1. What Are Your Goals in Mediation – Manage your expectations and if you only care about “Winning”, then a mediator is not what you need.  
  2. Prepare a List of Mediators – Check referral services/networks, or by word of mouth. Those who have gone through a mediation are usually a good source.
  3. Training, Knowledge & Research –  Contact mediators on your list and ask to be sent promotional material illustrating writings that reflect skills in collaborative negotiations.
  4. Mediator Interviews – Have a conversation with the mediator, NOT, just their office staff.
  5. Style and Cost – Discuss what style of mediation they use and what is their fee structure.

Good Luck.

To see the article as it appeard in the Miami-Herald/Sun Sentinel CLICK HERE

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 has a private mediation and ADR consulting company.  He regularly lectures on a variety of topics from ethics, cross-cultural issues, diversity, bullying, and Family/Business relationships.  

szamor@i-mediateconsulting.com

www.i-mediateconsulting.com

www.LinkedIn.com/in/stanleyzamoradr

(954) 261-8600

“Addressing the Imbalance of Power in Mediation” (short)

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As it appears in Legacy Magazine, an Independent Insert found in the Miami Herald and Sun Sentinel (May 5, 2017)

Mediation/Arbitration:  An Alternative to Litigation: “Addressing the Imbalance of Power in Mediation”

By Stanley Zamor

 

Power is perceived.  And when litigation opponents are engaged in negotiations, they tend to negotiate from their position of perceived power. But are the positions of power sometimes imbalanced? And if they are imbalanced, how can there be any fair negotiations?

 

We’ve all heard about the biblical story of David and Goliath. Or the statement that, “You can’t fight City Hall…” Both illustrate one party being perceived weaker than their opponent, yet, we know how David beat Goliath eventually become a King, and that City Hall has lost, a lot.  Mediation is conducted under various principles, one such principle is that a mediator has a duty to manage the imbalance of power and facilitate a process of negotiations where the parties feel empowered.  Mediation is one of the only processes where a person without legal representation, can actually find themselves in fair negotiation against an army of lawyers.

The Imbalance of Power:  What’s the Big Deal?

Ok, so let’s be honest. We deal with the imbalance of power all the time and all day.  Whether it is your boss changing your shift or demanding you to stay later to complete a project, or the home association raising the HOA dues. We deal with power imbalances all the time and sometimes there is a need for the imbalance of power.  However, when we want to find ourselves in litigation negotiations, we often seek to have a level playing field.

Often, even if we are in a position that is not favorable, with far less resources than our opponent, we still want to be treated with respect and consideration.  When a perceived weaker party is treated with respect, they often are willing to negotiate, even if they have far less resources to negotiate with.  When a skilled mediator is able to address power imbalances, by empowering the parties, litigation opponents feel more at ease to resolve the matter amicably.

How Mediators Manage the Imbalance of Power?

There are various techniques and tools available to a skilled mediator when addressing the imbalance of power during a mediation. A few are as follows: A high level of communication skills (both verbal/nonverbal); a strong awareness of the human condition, being creative and thinking out of the box; a keen ability/timing to know when to “reality-check” the disputants and the exploration of needs vs wants.  Although there are many other techniques, different mediators have different styles that dictate what they may use.

Now What?

Now that you know, that one of a mediator’s duties, is to address imbalance of power, be frank when you hire a mediator and ask, “How will you address the imbalance of power when we mediate?”  Although the mediator facilitates the process, the process belongs to the parties, and they have right to feel empowered during the entire mediation.

 

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 has a private mediation and ADR consulting company where he mediates/arbitrates and facilitates workshops. He regularly lectures on a variety of topics from ethics, cross-cultural issues, diversity, bullying, and Family/Business relationships.

szamor@i-mediateconsulting.com

www.i-mediateconsulting.com

www.LinkedIn.com/in/stanleyzamoradr

(954) 261-8600

As a Mediator, I Just Must Believe in Santa Claus

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keep-calm-mediatorIn a conversation with a friend, where we were speaking about gift ideas for our families, I asked her, “How do wrap, or present, the Santa Claus gifts to your young children?” She gave me a face and said, “Huh? What you mean by presenting a Santa Claus gift?” I stated, “Well, I wrap most of the gifts in generic holiday paper, but I wrap the Santa presents in bright distinct paper.  This shows the appearance and importance of the gift.  They may see other gifts under the tree, but it is not until the morning of Christmas do they see the Santa present.  I try to show them that Santa presents are different, and are usually something that is more thoughtful and heart-felt.” She looked at me bewildered, chuckled and said, “I don’t believe in Santa. And I just give my kids gifts. You know, I give them what they ask for… they look under the tree and there the presents are. There is no need to pretend that there is a Santa Claus.”  I, gently arranged my posture to lean in and said, “Hmmm. Think of Santa Claus, not as a person, but as a symbol. In today’s world, we are living in a time where there is just too much stuff going on.  Too much ugliness. Too much hate. Too much REAL violence and selfishness.  Our humanity is deteriorating.  Our children’s innocence is being robbed.  Would it not be wonderful to show them that, although they need to be aware of the harshness of these times, they can still believe in something grand and magical?  They can close their eyes and wish.  They can create a joyous fantasy that turns into realty once they unwrap a magnificently wrapped present.  This is almost like “willing” a success future, willing joy and a positive outcome, envisioning and creating a reality that is possible to achieve when practicing positive behavior. Behavior like respect, adherence to the rules of being a good boy/girl, being good to others…etc. Would it not be fun to witness the build-up of anticipation, and to watch the shear release of joy when their desires are fulfilled as they unwrap the Santa present? Or most importantly, would it not be awesome, to encourage giving of yourself to others and showing the importance of serving others?  What can be more joyous than that? The giving to others and/or, to those who may be less fortunate than you. All this can be taught through the symbol of Santa Claus.

See, Santa Claus needs to be real. I know, I know. How can I still believe in Santa Claus? Well, given the recent assassination of the Russian Ambassador, the Berlin truck incident claiming 12 lives, plus our (America’s) usual domestic sociopolitical ugliness, I just need to. Maybe it is also the occupational hazard of being a professional mediator/arbitrator, where I believe in transforming conflict into solutions, creating resolve and peace, where no one else believes resolve/peace is possible. AND maybe it is my belief in serving others. I believe in helping others, having empathy for others, creating opportunities of success for others, being that pillar of strength, standing for others, fighting for others, crying and sharing with others. Giving from the heart to others. And that is what the symbol of Santa Claus is supposed to be about; giving of yourself with no expectation of receiving. Even though the commercialization of Christmas disappoints me. And the lack of religious focus and care for the season is lessened at times… I look passed that and focus on the wonder, anticipation and the joy of giving. So, I choose to believe in the symbol of giving, generosity, selflessness, heart-felt gifts, and serving others… I choose to believe in Santa Claus.  And most importantly, for me, this is the season of the birth of LOVE, Jesus.”

Her face seemed a bit, saddened, she then replied, “Wow. Thank you for that.  When I was still married to my children’s father the holiday season brought us more stress than joy. So I guess I never focused on what it could be or should be…”.

As a mediator is seems that if we are to encourage resolution and peace-bridge building, believing in a symbol like Santa Claus and what this winter season is supposed to be in paramount.  So, I believe in Santa, because I believe we need more selflessness, love, and service to others.

 

Are Mediators/ADR Professionals Uncomfortable w/ Conflict Outside Their Conference Room?

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Appeared in “The Caucus” a publication from The Florida Academy of Professional Mediators Fall 2016 ed.

I AM Just Asking. Are Mediators/ADR Professionals Uncomfortable with Conflict Outside Their Conference Room?

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In Brief: Where are my fellow Mediators/ADR Professionals? I expected to see/hear more from my colleagues hoping to uplift their communities as our country suffers from a deteriorated Law Enforcement & comUncomfortabl picmunity trust, ignorance, hate and violence. Why is it that when I ask established colleagues for their insight on addressing the current turmoil found with Law Enforcement-Community divides they give me the “I’m uncomfortable look”, they start to blink a lot and avoid eye contact, or they mumble “…they’re not my clients…” WOW!? I just shake my head and say “We don’t have clients. We service individuals, businesses, communities in varying stages of conflict and we help these participants through these difficult issues…”.

It is increasingly clear when the world is being turned upside down and communities are at odds, Mediators/ADR professionals should feel the duty to actively step-in and step-up by offering their conflict resolution skills and to assist with brainstorming solutions and peacebuilding. Are we not the Bridge-Builders of dialogue? Instigators of open honest/transparent communication? Encouragers of respectful cross-cultural, racial and religious background acceptance? Why are so many of my colleagues not comfortable with conflict outside of their conference room walls. I sometimes don’t get it. But then again, I guess for many, this is just a profession and not a calling.

For those who see themselves going beyond the conference room, being uncomfortable while creating an impact, and working on sustainable solutions, I would love to hear from you szamor@i-mediateconsulting.com

Fla. Supreme Court Appointments Stanley Zamor to Mediator Ethics Advisory Committee (MEAC)

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I am proud to have been recognized and appointed by the Florida Supreme Court to serve on the Mediator Ethics Advisory Committee (MEAC) till 6/30/2020. The MEAC is responsible for rendering ethical opinions based upon written questions from mediators who are subject to the Rules for Certified and Court-Appointed Mediators, rules 10.200-10.690.  View the appointment.MEAC Appointment AOSC16-36    MEAC opinions are published on the Courts website at www.flcourts.org

MEAC Appointment June 2016