To schedule mediation with Brian Spector, you may contact him by telephone at 305.666.1664, by fax at 305.661.8481, or click here to complete an online form.
Before mediating a case, Mr. Spector expects the lawyers representing the parties to sign an engagement letter. A specimen of Mr. Spector’s standard mediation engagement letter is available upon request.
Before the lawyers sign and return the engagement letter, Mr. Spector asks the lawyers to discuss with their respective clients the Mediation Confidentiality and Privilege Act, found at Florida Statutes sections 44.401-44.406.
By signing the engagement letter, each lawyer certifies that:
- This statute has been discussed with the client, and
- The lawyer and the client agree that, except as provided in Florida Statutes section 44.405, “all mediation communications shall be confidential.”
Material to be Compiled and Provided by Participants
No later than one week prior to the mediation, Mr. Spector asks the lawyers to provide him (via e-mail with PDF attachments) the following materials:
- Copies of the docket sheet, key pleadings (i.e. complaint; answer, defenses and counterclaim; reply to affirmative defenses; answer and defenses to counterclaim; etc.), motions, memoranda, discovery, or other materials which the parties want Mr. Spector to read in preparation for the mediation
- A confidential mediation statement provided to Mr. Spector but not served on opposing counsel
- Copies of key cases which the parties want Mr. Spector to read
- Copies of all potentially applicable insurance policies and any reservation of rights letters
The confidential mediation statement should include the following information:
- The name of the judge
- When the matter is scheduled for trial
- Whether the mediation is pursuant to court order or voluntary (i.e. by agreement of the parties)
- Whether there have been any prior trial settings which have been continued and, if so, the number of continuances
- Whether the case is set to be tried before a jury or the court sitting without a jury
- The lawyer’s best estimate of the number of days to try the case
- The legal basis (if any) for recovering attorneys’ fees from the opposing side
- Whether there are any issues regarding collectability of a money judgment from any party and, if so, what those issues are
- The identity of each person who will attend the mediation for or on behalf of the respective parties, including but not limited to insurance company representatives, and whether any such person is, by agreement or court order, participating telephonically
Lawyers are asked to summarize their clients’ positions on:
- The merits (liability, damages, declaratory or injunctive relief), including citation to any key authorities which counsel want Mr. Spector to read to understand the substantive legal issues involved
- Settlement, including a recitation of any prior settlement discussions and any presently outstanding settlement demands or offers
Preparation by Parties and Counsel
All parties and counsel are asked to come to the mediation prepared to tell Mr. Spector (outside the presence of the other side):
- Attorneys’ fees and costs to date
- Through trial and post-trial motions projected attorneys’ and experts’ fees along with likely costs (e.g. ESI, travel, court reporters, videographers, trial graphics, electronic courtroom technology, etc.)
- Each party’s best, worst, and probable alternatives to a negotiated agreement and the likelihood (in percentage terms) of each scenario/outcome should the case not settle.
Manner in Which Mediation Is Conducted
At the mediation, the parties’ counsel usually make opening statements to explain, not argue, their respective views of the matter, and the reasons they will win and the other side will lose.
The plaintiff should be prepared, if possible, to make a demand at the close of counsel’s opening statement.
Of course, the parties and counsel may want to confer in private with Mr. Spector prior to making any demands or offers, also an acceptable procedure.
After the opening statements, the mediation participants can decide whether discussions should proceed as a group (in plenary session) or whether each side should break out into separate rooms to caucus and meet privately.
Mr. Spector expects that if an agreement is reached the parties will sign a binding settlement agreement before the mediation concludes. He asks counsel to bring to the mediation drafts (in hard copy and electronic format – preferably Word) of settlement papers, including all required monetary and non-monetary terms which each party believes is necessary and appropriate. He prefers that counsel confer and jointly prepare a draft settlement agreement, and email Mr. Spector that draft prior to mediation. Where counsel cannot agree on the need for, or the precise language of, a particular provision, he asks that they simply flag the issue in the draft document.
Mr. Spector customarily prepares and emails counsel a “shell” settlement agreement which the parties and their counsel are free to use this as they see fit – in whole, part, or not at all.
Use of Interpreters
All mediations conducted by Mr. Spector are in English. If any decision-maker is not fluent in English (i.e. a lawyer would have an interpreter for that person at deposition or trial), Mr. Spector expects that decision-maker’s counsel will arrange for an interpreter to attend the entire mediation. He asks that the interpreter retained be certified through the Administrative Office of the U.S. Courts or Florida’s Court Interpreter Certification and Regulation Program.
Virtually all courts have rules prescribing mediation party attendance requirements, see S.D. Fla. L.R. 16.2(e) and Fla.R.Civ.P. 1.720(b). Courts also typically enter case specific orders containing mediation party attendance requirements. Mr. Spector expects any person who is a party will attend the mediation in person. Similarly, if the party is an organization or entity, Mr. Spector expects a fully authorized representative will attend the mediation in person. If for any reason someone needs to participate telephonically, Mr. Spector expects counsel to discuss this issue in advance. If all counsel of record agree to anyone participating in the mediation in some manner other than in person, Mr. Spector expects an agreed motion to be filed and an appropriate order obtained from the court. Obviously, if counsel do not agree, the matter should be brought promptly to the attention of the court so the presiding judge may decide whether to excuse someone’s personal attendance.