All posts by duffc

ADR

Is Online Mediation Here to stay?

Before the Pandemic

I didn’t do a lot of online mediation prior to the pandemic. I did some online dispute resolution (ODR) in connection with my work as a mediator and arbitrator for the American Arbitration Association. That work mainly consisted of telephonic preliminary hearings and telephonic final hearings in cases with less than $10,000 in controversy or upon the request of the parties. I also served as a mediator in a few hearings where one or more parties appeared virtually. However, online mediations didn’t constitute more than 20% of my practice before the advent of COVID-19. Since April 2020, however, I’ve become an old pro at online mediations (and ODR in general). At this point in time, 100% of my mediation practice is conducted online.

Changing Perspectives On Online Mediation

My my how things have changed since April, 2020. Courts all over the country (and the world) began holding hearings (and even trials) online. At first, lawyers, judges, arbitrators, mediators, insurance industry professionals and even some clients were predictably resistant to online mediations. They complained about the lack of in-person interaction and claimed that face-to-face mediations, depositions, hearings, etc. were infinitely better than virtual proceedings. As time went on, however, the legal industry became more accustomed to using technology, and attorneys, mediators, and other legal industry professionals became adept at communicating effectively on a virtual basis. Once that happened, they began to appreciate the benefits of online mediation and online dispute resolution in general.

I realized that the tide had begun to turn when, while waiting for a mediation conference to begin, one counsel mentioned how easy it was to participate in online mediations. He even joked about never going back to the old ways. Since then, I’ve seen numerous articles about law firms deciding to reduce their office space footprints and allowing their attorneys to work from home.

My Thoughts About Online Mediation

I, for one, have enjoyed conducting online mediations and arbitrations from my home office. It allows me to minimize my exposure to COVID-19 while still serving my mediation and arbitration clients to the best of my ability. Being able to move parties and their counsel into separate breakout rooms and have in-depth discussions with them during mediations gives me opportunities to connect with them which helps to facilitate dispute resolution. Being able to watch testifying witness’s faces close-up during arbitration proceedings helps me to evaluate truthfulness and gives me all the access I need to serve effectively. Plus, I can re-watch portions of the testimony recordings if I need to.

Finally, and most importantly, I haven’t seen any major difference in the settlement rate of online mediations versus in-person conferences. In fact, parties seem more inclined to stay and work things out now that they’re not trying to beat rush hour traffic or running off to catch flights at the end of the day.

Schedule an Online Mediation or Arbitration Today

If you’re running up against a court ordered mediation deadline or are otherwise ready to resolve your dispute, contact us today to schedule your online mediation or arbitration. We’d love to help you.

So, tell me, what do you think about online mediation? Would you be willing to continue using it in the future or do you prefer in-person proceedings? Let me know in the comments.

Uncategorized

All about Online Dispute Resolution

Online Dispute Resolution

With the advent of COVID-19, online dispute resolution is the way to go. Why risk contracting the virus by hanging out in conference rooms with groups of people outside of your immediate family circle for extended periods of time when you can fully participate in mediation and arbitration from the comfort of your home or office?  This is especially true when it comes to mediations involving large construction projects with multiple parties, counsel, and insurance carriers, as they can have more than 15 people in attendance. 

Some attorneys (and clients) shy away from online mediations and arbitration hearings fearing that they’re somehow not as effective as in person proceedings, but that’s not necessarily true.  A skilled online dispute resolution specialist can help the parties acclimate to the relatively easy technology and make the experience as effective and productive as in person proceedings. 

In the case of mediations, parties can start out in a single virtual room and then be separated into breakout rooms just as they would in a live mediation conference. In a virtual arbitration proceeding, the arbitrator can get a close up view of a witness’s face and demeanor on the screen as they’re examined and cross-examined and even get a recording of the testimony to refer back to in the absence of a transcript.

Even before the pandemic, mediations and arbitrations took place every day by telephone or videoconference.  As a mediator and arbitrator who serves on the American Arbitration Association’s (the “Association”) roster of neutrals, I’ve conducted many mediation conferences and arbitration final hearings online and telephonically. In fact, telephonic mediation conferences and hearings are the norm for certain types of cases that come before the Association. 

How Does Online Dispute Resolution Work?

At Duff Law & Mediation, PLLC, we offer our clients the flexibility of holding mediation conferences and arbitration hearings via Zoom, telephonically, or on any videoconferencing software of the clients’ choosing. 

When you schedule the mediation or arbitration proceeding, we discuss whether it will be held online or in person and whether it will take place on Zoom or via some other technology.  If the proceeding will be held on Zoom, we set up the Zoom conference and provide the parties with the link to join the meeting and the password.  

If any party is unfamiliar with Zoom and wants to see how it will work for their mediation conference or final hearing, we schedule a short walk-through session to help them learn basic commands, see how it works, and get more comfortable with the platform.

In the case of arbitrations, the parties exchange exhibits and provide us with a copy prior to the final hearing.  The attorneys can share their screens to show exhibits to witnesses and examine them about the documents or make the exhibits available on Dropbox or another database for that purpose 

In mediations, the mediator is the host of the Zoom meeting. The parties start out in the main Zoom “room” for mediator instructions and opening statements, if any.  The mediator then separates the parties into separate “rooms” and speaks with each party separately, just as we would at an in-person mediation.  No-one but the participants in each room and the mediator is a party to any conversations between the attorneys and their clients in the separate rooms. To ensure additional privacy, the parties can mute their microphones and speak with their counsel over the telephone instead.  

If the matter settles and counsel needs to work out the terms of the written settlement agreement or it is otherwise advantageous to do so, the mediator has the ability to close the breakout rooms and bring the parties back into the main room. 

Schedule an Online Mediation or Arbitration Today

If you’re running up against a court ordered mediation deadline or are otherwise ready to resolve your dispute, contact us today to schedule your online mediation or arbitration. We’d love to help you.

Construction

Claim of Lien Preparation Checklist

Contractors and others who prepare construction liens should do so very carefully. A single misstep in the preparation of a claim of lien could result in serious consequences for the lienor including loss of lien rights and potential liability.

Things to be Mindful Of . . .

1. Make sure the potential lienor has lien rights pursuant to Chapter 713. §713.01(18), Fla. Stat. (2020)  provides that only contractors, subcontractors, sub-subcontractors, laborers, materialmen (who contract with owners, contractors, subcontractors, and/or sub-subcontractors), and professional lienors (i.e. architects, interior designers, engineers, surveyors and mappers), have lien rights. A sub-sub-subcontractor, for example, does not have lien rights even if they worked on the property. Before preparing a claim of lien, make sure that the proposed lienor has the right to assert one in the first place.

2. Check the title and ownership status of the property to determine whether the property is subject to a construction lien. If the party who contracted for the improvements owns the property that is the subject of the agreement in fee simple absolute, then his entire ownership interest may be subject to a construction lien. If he owns no legal or equitable interest in the property, no lien can be asserted against it. If a lessee enters into a construction contract, the lien only reaches his leasehold interest unless the lease agreement requires (as opposed to permits) the lessee to make the contracted for improvements to the property and the owner fails to meet the requirements of §713.10, Fla. Stat. (2020) (which allows a lessor to limit its liability for liens for improvements made pursuant to contracts with the lessee). In short, the ownership status of the property may affect whether a lien can be asserted and the steps necessary to impose one against the property; thus, it is imperative to determine the status before attempting to assert a lien.

3. Make sure no payment bond exists exempting the project from a lien. Before preparing a claim of lien, first review a copy of the Notice of Commencement for the project and make sure no payment bond exists exempting the property from the proposed lien. §713.02(6) provides that unconditional payment bonds provided by contractors for projects pursuant to §713.23, Fla. Stat. (2020) exempt the owner’s property from all claims of lien except for those of the contractors who furnish the bonds. All other lienors must proceed against the bonds and not the property. Conditional payment bonds furnished pursuant to §713.245, Fla. Stat. (2020) only insulate the property from a lien to the extent the property owner paid the contractor for the scope of work encompassed by it. Since §713.23, Fla. Stat. provides that a copy of any payment bond must be attached to and recorded with the Notice of Commencement, that is a good place to start your inquiry.

4. Make sure the lienor is properly licensed. The next thing to do before preparing a claim of lien is to make sure the person or entity asserting the lien is properly licensed to perform the work covered by it. Pursuant to §713.02(7), Fla. Stat. (2020), an unlicensed person or entity does not have the ability to assert a lien. Moreover, §489.129(1), Fla. Stat. (2020) provides that construction contracts are not enforceable in law or equity by unlicensed lienors.

5. Make sure the lienor’s license covers the scope of work included in the claim of lien. If a lienor only holds a local license, for example, they will not able to lien for work performed outside the geographic scope of their license. If a project is governed by a design/build contract, then both the contractor and the architect need to be licensed and at least one of them should have signed the agreement with the other properly licensed entity performing its scope of work as the subcontractor.

6. Don’t get fancy with it. Your claim of lien should look a lot like and include all of the warning language contained in the statutory form provided in §713.08(3), Fla. Stat. (2020). The statute provides that a claim of lien need only substantially comply with the form so long as it contains the statutory warning language at the top. But why take a chance that the lien is not enforceable by deviating too much from the form?

7. Make sure that only lienable items are included. If a lienor includes items that are not lienable or outside the scope of the contract, they may be precluded from enforcing the lien and may be exposed to a claim for fraudulent lien. Only work that is performed pursuant to the client’s contract may be included. Discrepancies between the scope of the work identified in the agreement and the work identified in the lien may preclude its enforcement. Also, certain items, such as overhead and profit are not recoverable as separate items within the purview of the lien law when the rest of the job costs have been paid.

Other Things to Consider

This is by no means intended to be an exhaustive list of issues to be considered in preparing construction liens. Other important items to consider include, for example, making sure that the lienor timely and properly serves a notice to owner if required, and that the claim of lien is filed in a timely manner and recorded in the proper place.These and other issues will be the subject of future articles.

This article is not intended to provide legal advice.  You should consult with an attorney prior to filing construction liens as the laws in your jurisdiction and the circumstances of your project may raise other issues or have an impact on your particular matter.

ADR

Litigation: Not the Only Answer

Litigation
“Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often the real loser — in fees, and expenses, and waste of time. As a peace-maker the lawyer has a superior opportunity of being a good man. There will still be business enough.” – Abraham Lincoln

The above quote by Abraham Lincoln makes me think of how we lawyers sometimes lose sight of the fact that winning in litigation  (as opposed to reaching a mutually agreeable resolution to a dispute) may not always be the best outcome for the client.  While there are certainly advantages to being definitively declared a winner by the Court, winning can indeed be a hollow victory after years of litigation and appeals, hundreds of thousands of dollars in attorneys fees and costs, thousands of man hours spent, and burnt bridges.   Sometimes it just makes more sense on a business and/or personal level to find an alternative resolution to a dispute – especially if there is an ongoing relationship between the parties or if the client’s time is better spent on cultivating or developing its business.

Sometimes, the best decision is to fight until the bitter end.  Either way, it is important to make an informed decision as to which avenue to take and to explore all of one’s options and goals before embarking on a particular path.  Luckily, it’s never too late in the litigation process to explore creative and amicable solutions to disputes.  We’ll discuss this issue further in future blog posts.