Rodney Romano, Matrix Mediation, LLC

             Peter Parker calls it his “spidy sense.”  Others call it a sixth sense, gut feeling, inspiration or epiphany.   Whatever you call that inner voice that comes up with great ideas when you take a breath and listen, it’s real and it’s valuable and most of us don’t tap into it as much as we could.  When you are in a mediation and you hit a brick wall, all seems lost and you are ready to call an impasse, that voice can spark the creativity to help you move past the impasse.  And that is a recipe for happy clients and a more satisfying practice, whether you are a trial lawyer, adjuster or mediator.

            Not every case can or should be settled at mediation.  However, there is common ground in every case. Either the parties will find it themselves or the jury will impose it upon them.  But sooner or later, one way or another, your matter will be resolved.  Of that, there is no doubt.  The only real issue is whether the resolution will happen at a time and in a manner that most benefits the parties. For example, let’s say that a personal injury case has a probable jury verdict value of between $50,000 and $100,000, is in suit and each side has less than $5000 in costs.  If the case settles for $75,000 the plaintiff will net about $40,000 before satisfying liens.  The defense pays $75,000 plus its own fees and costs.  At trial, if the plaintiff gets $100k but has non-taxable costs of $15k, then the plaintiff nets the same or less, especially after the PIP reduction, and the defense cost of the file approaches $150k. Everybody loses.  If the defense has a good day and holds the verdict to $50,000, their cost to close the file will still exceed $75k or $85k but the plaintiff gets less. Everybody loses.  Arguably in every case, but if not, then in almost every case, there is a resolution that would have made more sense to both sides than the trial result.  That number is easy to figure after the trial and the harm is done; the trick is to predict the number early in the case.

          The next time you hit that wall and you are almost ready to give up, try this instead: take just a few minutes to clear your head. Your mind is a powerful, powerful computer; give it a moment to process the challenge and connect the dots. Then go through a mental checklist of everything you’ve done to reach an accord, looking for angles you may not have considered.  Then brainstorm with your team.  Be bold, inventive and unafraid to suggest something new.  If nothing happens then all you’ve lost is a few minutes.  But if an idea comes to you that allows the case to settle, then those few minutes can be worth thousands.  Just a thought.

Rodney Romano, Esquire/Mediator

Matrix Mediation, LLC

Rodney Romano, Matrix Mediation, LLC

Second-rate mediator answer: two hours.  Correct answer: as long as it takes!

            Typically, circuit civil mediations are scheduled in two hour, half day and full day blocks. As a trial lawyer, I have experienced many mediations in which the mediator called time based on his artificial deadline and the case which would have settled with a little more time, patience and tenacity wound up in an impasse; then both sides spent thousands more in costs, only to settle the case on their own prior to trial.  The parties need to have their schedules cleared and not be in a rush.  The bigger problem is usually the mediator, who I believe should be committed to giving each case his/her best effort. Certainly it is important to think about how much time is needed for a particular case and to be considerate of the cases that are scheduled after yours.  However, sometimes despite everyone’s best scheduling efforts, the case needs to go overtime, and I think the mediator should stick with the case until it settles or all options are exhausted.

            Each mediation is a custom job and there are many variables that can make the process completely different for cases that appear similar on their faces.  As soon as summaries come in, a good mediator begins to design the mediation.  The mediator should carefully listen to and observe the participants during the presentations and continue designing the appropriate process for that particular case and the people involved. I have found that oftentimes more information can be discerned by what is not said than by what is said.  Then, when the parties break into caucus, the mediator has a negotiating plan to recommend (keeping within the ethical parameters required of certified mediators).

            I recently had a very significant personal injury case with facts similar to hundreds I’ve conducted before that resolved inside of two or three hours.  However, this case took nearly seven hours and the parties were at the brink of impasse halfway through and settlement seemed hopeless.  Some of the problems included the unusual and confrontational negotiating styles of the two parties, strong distrust between the parties and particularly extensive and detailed arguments on both sides regarding causation and damages.  However, rather than impasse, the parties agreed to be patient and to try some creative exercises which led to settlement in the late hours of the night.  Afterwards, each party confided that they thought the case settled exactly for the amount they thought it should have. If I had called time when the case was scheduled to end at 5pm, the case, which had a plethora of experts on both sides, would have impassed and many thousands of dollars and dozens of hours of time would have been spent before settlement discussions rekindled weeks or months later. The parties’ willingness to stay until they had a chance to work every angle led to the best outcome and the lowest cost for all parties.  The time and money they saved with their extra effort was easily many times the few extra hours they paid in my fee, arguably making the mediation some of the best cost money spent on the case.  They walked out the door feeling that their time had been used productively.

            Sometimes parties don’t want to schedule more than two hours for fear they’ll be stuck with a higher minimum guarantee even if the case impasses quickly; that’s a very legitimate concern, especially in today’s economy.  Here are a couple of practice pointers:

1. Talk to the scheduling staff.  They are trained and experienced in helping you estimate the time you need while managing your costs at the same time;

2) Think about your own style.  If your openings take an hour, remember the other side is entitled to a chance as well and factor that in.  Also, when there are multiple parties, two hours is often unrealistic.

3) Consider the needs of the non-lawyer participants; some need to go through a meticulous process more than others;

4) Consider whether there will need to be ”negotiations within the negotiations,” such as when multiple defendants are negotiating their contributions to settlement or multiple plaintiffs are negotiating their apportionment of settlement proceeds.

5) If you think the case will either impasse quickly or go for hours, consider scheduling the last time block of the day with a mediator who will continue for as long as it takes; that way, you make the minimum commitment but know that you have the entire night if needed.

            Matrix Mediators and staff know the challenges of running a law practice and our mission goes beyond simply providing a quality mediation.  We strive every day, in every case, to contribute to improving the quality and efficiency of your practice.  If you are a Matrix client, thank you for trusting us with the mediation of your cases; if not, we hope you’ll give us a try and we are confident that you’ll be glad you did.

 Rodney Romano, Esquire/Mediator

 Matrix Mediation, LLC

By: Amber E. B. McMichael, Esquire

This article is to point out and explain the benefits of foreclosure mediation as well as introduce myself and why I have an interest in foreclosure mediation. Foreclosure mediation is a new process that is long overdue. It helps homeowners keep a roof over their heads and lenders preserve their assets. Florida and local Bar newsletters reflect the crisis now underway. The Florida Circuits have been trying to implement new processes to help and assist Florida Homeowners with this ever-growing foreclosure epidemic. For instance, in the First, Eleventh, and Nineteenth Circuits they have employed the use of the Collins Center for Public Policy while other Circuits are applying their own processes. The Fifteenth Circuit is not making mediation mandatory but is reaching out to each homeowner/borrower and asking if they would like to mediate; if so they are given instructions and steps on what to do next.

             My name is Amber McMichael and I am a Supreme Court Certified Civil Circuit and Family Mediator and I am also a licensed and practicing Florida Attorney.[1] I hold a Masters of International Business Administration as well. I am a transplant from North Carolina, came here for law school, met my wonderful husband and have built my life here. I have always had an interest in Real Estate Law, which started when I was employed by a well-known and well-respected law firm in Greenville, North Carolina while attending college. I am experienced in real estate law, estate planning, evictions, business law, and family law.

            One of my main goals of becoming a certified mediator was to mediate foreclosures. I handle every kind of civil dispute but helping people stay in their homes is a special calling. Just a year ago no one was conducting foreclosure mediations. No one knew how to implement mediation in the foreclosure process. My interest of foreclosure mediation stemmed from my clients. Too many clients were coming to me asking me for guidance and assistance regarding their mortgages. I knew when I was conducting the closings that something was going to hit the real estate market and it wouldn’t be good. The loans people were qualifying for were outrageous and the prices of the properties being purchased were astronomical. I knew that the market would not be able to sustain itself. Unfortunately what I had feared came to fruition: the real estate bubble burst. I had clients coming to me to help them figure out their options: modification, short sale, deed in lieu, foreclosure. I would contact the lenders on end and around the clock which was very time-consuming and at times frustrating. As a professional, I was speaking to several different people, if I was even able to get a person and leaving message after message, and it would take days sometimes to get any kind of response. So I could only imagine what my clients were feeling and experiencing without my involvement as well as those borrowers who had no representation. For a borrower it can be extremely overwhelming and frustrating when you never speak to the same person, each person never tells you the same thing, and then you do not understand the terms they are using or how exactly they affect you. That is when I realized that if mediation was an option during a foreclosure proceeding and preferably pre-suit we could really make an impact on the foreclosure epidemic; without another option, lenders would face massive asset write-downs and losses. Mediation brings the borrower and the lender face to face and provides a win-win option instead of a sure lose-lose result.

            Foreclosure mediation benefits both the borrower and lender in several ways. The benefits to the borrower consist of: assisting the borrower in finding a way to stay in the property; or getting the borrower out from under the property with the least damage to their credit; allows the borrower to have a say in the outcome of the matter; and most of all gives the borrower a voice which alleviates their stress and anxiety. The lender benefits in the following ways: obtaining a work out means no additional inventory; caps and stops expenditures such as maintenance, legal fees, and time; allows for the lender to engage in direct contact with the borrower to obtain necessary information regarding borrower; and most of all implements a work out so they have a performing loan and their asset is protected.

            I have seen these benefits take place first hand during the foreclosure mediations I have conducted. The borrowers are relieved to be able to talk to a person who has authority to make a decision over their mortgage and the lender is ready, willing, and able to assist the borrower anyway they can. Even when keeping the property is not an option, mediation almost always provides better choices than litigation does. In this particular instance the borrowers are of course sad to lose the property but are nevertheless relieved to have the burden of the property lifted from their shoulders. Likewise, the lender is pleased to stop the bleeding of unnecessary expenses and litigation costs. Most of the mediations end with a modification or trial modification which pleases both sides. The homeowner/borrower gets to stay in the property and the lender gets a performing loan. No matter how the matter is resolved, mediation allows the parties to collectively determine and decide the best outcome for each individual circumstance and work towards a common goal. Additionally, it allows those directly affected by the real estate slump to regain their stability. All in all the foreclosure mediations are a win/win for all involved.[2][3]