ASK THE ART LAWYER: Alternative Dispute Resolution. Part Two

By Octavio Robles, AIA, Esq

MEDIATION

As discussed in Part One of this article, where Arbitration was the topic, Alternative Dispute Resolution (ADR) practices has grown greatly in the past 50 or so years in the United States. In Part Two, Mediation is discussed. Because of the cost and time involved in traditional court proceedings, ADR alternatives have become the standard go to methods of resolving legal disputes wherever possible. Although both Arbitration and Mediation provide cost and time savings benefits, Mediation far exceeds Arbitration in the prospects of economizing on both cost and time in the task of resolving a dispute. It is important to again point out that ADR methodologies apply only in civil cases and that where a dispute qualifies for small claims court, neither ADR method may be cost or time effective.

IT TAKES THREE TO TANGO

As opposed to Arbitration, where opposing parties submit their dispute to a neutral arbitrator under guidelines that are simplified as compared to traditional trial court litigation proceedings, for either a binding or non-binding decision, Mediation brings at least three parties together. The opposing parties and the Mediator are all willing participants in the process with the objective of structuring a settlement to the dispute. Court litigation is very structured, can take months or years and can be very expensive to resolve. Arbitration is less structured than court litigation but still takes time for the process to be completed and although less costly than litigation, can also be considerably expensive. Mediation can resolve a case in as little as one day, depending on the case complexity, and cost much less to resolve than both Arbitration and Litigation.

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WHAT IS MEDIATION?

Mediation is an interactive, structured, conciliatory dispute resolution process where a third party joins the disputing parties in order to assist with the resolution of the dispute.

The Mediator manages and facilitates the objective of settling the dispute. He is able to moderate the process freely by conceptualizing and proposing alternatives that are likely unavailable to the litigants in either court or Arbitration. Most importantly, Mediation is almost always voluntary and the decisions are made by the parties as opposed to the Judge in litigation or an Arbitrator or panel in arbitration cases.

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Mediation can be initiated at any time during the dispute and although a case rarely goes to Mediation before a case is initiated, the parties could try to settle an anticipated case before it is even filed. This is referred to as Pre-litigation Mediation. Most cases go to Mediation at some point during the litigation process. Although Mediation is voluntary and may be initiated by the parties at any time by simply agreeing to mediate, either party may move to have the presiding judge refer the case to Mediation. Parties can make either an independent or a joint motion for a Referral to Mediation. Judges are usually very agreeable to refer cases to Mediation when either an independent or joint motion is made and the Judge determines that Mediation might be fruitful. In some situations, a judge may independent of the parties, order that the case be mediated and issue a Referral. In any case, judges never select a mediator unless the parties so request and agree to the selection. Judges are interested in moving cases along to settlement in order to clear their calendars and they are well aware that most cases settle in Mediation.

Where a case arises from a contract dispute and the underlying contract provides for any such dispute to be automatically resolved through Arbitration instead of court proceedings, the parties could agree to Mediation before the Arbitration process would otherwise begin.  Likewise, in cases where the underlying contract provides for pre-litigation Mediation, the case would need to be mediated before the case can move forward to litigation. It is not uncommon for a dispute to be mediated twice and be settled later on the second try as the cost of litigation starts mounting.

THE PROCESS

The Mediator is selected by the parties by agreement. Where the parties cannot agree as to the selection, a third party may be appointed to select the Mediator. Ultimately, where Mediation has been ordered and the parties cannot agree as to the selection of the Mediator, the judge, upon either or both parties’ request, will select one.

The criteria for the selection of a Mediator ranges from training, experience, particularly, knowledge about the subject matter that the dispute deals with, professional background of the Mediator and certification. A Mediator must be certified by the Florida Supreme Court. The certification process requires specialized training. The selection process also includes evaluating the personality traits of the Mediator and how compatible it would be with the parties and their counsel. Other factors in the selection process includes determination if there might be conflicts of interests and the cost of the Mediator. Some specialized Mediators with extensive technical and legal backgrounds in the subject matter in dispute, can be very expensive but can also turn out to be a bargain if the case can be resolved quickly thanks to the Mediator’s expertise.

A Mediator cannot force the parties to agree or to settle the case. He can’t even rule on anything. A mediator must follow mediation protocols. He must clarify at the outset of the process, that he is exclusively a neutral facilitator of an opportunity to settle by exploring and proposing terms and conditions upon which to structure a settlement that is satisfactory to all parties. That he cannot force any decisions and most importantly, that the procedure is voluntary and confidential. Whatever happens within the Mediation process, is not available to a judge, jury or Arbitrator.

Mediation is usually initiated with a joint session in a conference room where the Mediator sets forth his protocols and each party voices their claims and position. Individual caucuses will usually follow where the Mediator will discuss the issues and possible solutions with each party and corresponding counsel. As the possibilities develop, the Mediator will usually shuttle back and forth between the parties and counsels to fine tune all aspects of the developing settlement agreement. When a complete agreement is reached, the Mediator will draft a formal settlement and will present it to all parties and counsel for execution. Upon execution, the Mediator will submit the agreement to the judge or Arbitrator for ratification and approval. I the event that the Mediation is not successful, it is referred to as an impasse and the parties will have to resume their process in court or Arbitration. A Mediation sometimes gets adjourned for need of an indispensable third party decision of simply because the process needs to be continued in order together information that is material to the success of the proposed settlement. In such events, the mediation is adjourned and continued at a later agreed to date. The Mediator always issues a report to the judge or Arbitrator setting forth the outcome of the mediation and status of the case. Settlement agreements that are reached in Mediation and submitted to a judge or Arbitrator are enforceable by court or arbitration order.

MEDIATION IN ART DISPUTES

Mediation is very effective in the resolution of disputes associated with art and cultural heritage. A mediated agreement can encompass and resolve issues that would be highly unlikely in a court final order. Arbitrated cases may be able to combine more issues than a court case but they are also highly unlikely to include multiple faceted issues the way a mediated settlement can. Cases involving art and cultural heritage have a propensity to be cross-border in nature thus making them even more difficult to litigate. Determining what court in which country has jurisdiction can be a nightmare and subject to appeals.

There are international organizations that deal with Alternative Dispute Resolution in art and cultural heritage cases. The International Council of Museums (ICOM) and the World Intellectual Property Organization (WIPO), have developed a mediation structure for disputed involving art and cultural heritage. These kind of cases are highly specialized and usually involve both legal and non-legal issues. They can take into consideration points concerning historical, moral, religious and cultural issues as well as commercial claims and money damages. Both organizations provide mediators that are trained in the arts as well as organizational structures that facilitate a Mediated settlement. In addition to cases stated above general involving art and cultural heritage, cases involving intellectual property, loans and deposits of art as well as their return and restitution, insurance claims, art as collateral in financial transactions, repatriations, unauthorized duplications and digitalization, donations and endowments as well as any other case or controversy involving sub-categories of art can be mediated.

Octavio Robles, AIA, Esq. is a legal contributor to ARTDISTRICTS and a member of the Florida and Federal Bars (Southern District of Florida). He is a Florida Supreme Court Certified Mediator and Approved Arbitrator; a member of the Construction Committee of the Real Property, Probate and Trust Law Section, the Art and Entertainment, and the Alternative Dispute Resolution Law sections of the Florida Bar; and a member of the American Institute of Architects, Art Deco Society of Miami and Copyright Society of the USA. He holds licenses as a registered architect, state-certified general contractor and real-estate broker in Florida and is a LEED-accredited professional. He received his Juris Doctor degree from the University of Miami School of Law in 1990. He holds masters’ degrees in architecture and construction management and a bachelor’s degree in design, all from the University of Florida. His practice is limited to art, design, architecture, construction and real-estate law.