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ALTERNATIVE DISPUTE RESOLUTION FEBRUARY 24, 2020 ¦ S-29

“When you’re sitting in a room Schneider noted the same can’t be
with the other side and you’ve got said for arbitration, as confidenti-
someone there trying to facilitate ality typically goes out the window
a settlement, it is your opportunity when the case is over and the win-
to take control of your case. Love it ning side moves to enforce an award
or not, it’s over on that day,” he said. in court.
“There’s no reason to ever say no “Eventually, it comes out,” Schnei-
mediation.” der said.
Freidin Brown’s Philip Freidin, a Freidin, who specializes in
Miami trial attorney of more than personal injury and medical mal-
50 years, is also a fan. practice cases, also hasn’t seen
“If everybody went to trial, the savings in arbitration, where a panel
system would cease to function,” of three arbitrators might charge be-
Freidin said. “I almost never have a tween $500 and $1,000 per hour.
client who hires me to try their case. “You’re still going to need the
They hire me to get them a result, same experts that you would in front
and if a settlement gets them the re- Ugo Colella partner with of a jury or a judge, so you still have
sult, that’s what I’m supposed to do.” Culhane Meadows Haughian & the same expenses, and other than

Walsh. Courtesy photo.

The allure of mediation, Freidin spending the time picking a jury
said, is that it offers finality by agree- you’re still going to spend the same
ment, rather than force. number of days in trial, generally,” Freidin said. “It
doesn’t feel the same as having a jury decide.”
‘It would have been a disaster’
Miami commercial mediator and arbitrator Gary Defendants in personal injury cases tend to favor
Birnberg describes mediation as “the business-ori- arbitrators, Freidin said, “because they want to avoid an-
ented solution,” as opposed to the legal solutions swering to a jury that will have a degree of outrage that
of litigation and arbitration. Because it allows the a lawyer who’s a businessperson probably wouldn’t.” As
bending of rules, mediation allows companies to a result, jurors typically award more money.
preserve their relationship, instead of becoming Freidin’s preparing for an upcoming arbitration
enemies. trial that he suspects will be costly.
It’s also the only resolution that can guarantee “Let’s say there’s 20 days ... and eight hours a day,”
confidentially. Freidin said. “If it’s $500 an hour, which would be
Birnberg recalls one limited-liability insurance low, times eight, times three, is $12,000 a day. For 20
claim where the amount in controversy was “closer days, that’s a quarter of a million.”
to a billion dollars than it was a hundred million” Arbitration has also caused trouble in consumer
and the parties chose mediation because “nobody law, as many companies have introduced contract
wanted the publicity.” After a year of sticky and in- clauses to stamp out class actions.
tense negotiations, the case was resolved in four Related story: ‘Poetic Justice’: Judge Berates
days of mediation. DoorDash for Trying to Escape Its Own Arbitration
But it would have been a different story in the Agreement
courtroom.
“The press would’ve been all over it, to nobody’s ‘Two win, one loses’
benefit,” Birnberg said. “I don’t know who would But it isn’t all bad, the way Fort Lauderdale
have won. It was tough. All I know is that it would mediator and arbitrator Anne Bloom sees it. Arbi-
have been a disaster, whereas now it’s finished. It’s trators must submit reports within 10 days of a trial,
just gone, and now the parties can go back and do whereas judges have more leeway for delay.
business.”
¦ Continued on PAGE S-30

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