BREVARD MEDIATION SERVICES, LLC
INDIAN HARBOUR BEACH, FLORIDA

The ABA has recognized that the use of ODR provides a means to alleviate the logjam to access for civil litigants without resources to hire counsel. From my perspective, this position raises a few questions and assumptions that need further examination. Woven into the discussion on the utility of ODR is the concept that it provides a panacea for the “unavailable counsel” problem that so many civil litigants face today. The ABA article points to the long-standing call for a civil Gideon rule, and that using these kinds of programs might take up some or all of the slack. These may be the kinds of matters that show up in a small claims court, such as creditor/consumer financial disputes; contract disputes between a consumer and a service provider such as a remodeler; terminated employees claiming loss of benefits or wages they believe are owed. Litigants who are compelled to come to court without counsel may also be involved in family court proceedings or domestic violence proceedings. Likewise, civil litigants who can’t afford counsel find themselves acting pro se in matters involving workers’ compensation, and unemployment compensations, as well as social security disability hearings. Or, a litigant may be acting pro se in a federal court on a Constitutional rights claim. It occurs to me that we are already doing in Florida what the ABA is proposing – namely, claims in Florida’s courts are required to participate in mediation before being tried before a judge or jury. And the mediation process does result in huge efficiencies to the courts and the participants in the process. See [insert DRC or judicial circuit statistics here]. We do it with actual, in person mediators , however. Perhaps what should be considered is making dispute resolution participation mandatory at an even earlier stage of the proceedings, not just once the case is filed and issue joined. I also want to point out that the FL courts DIY process, where a pro se litigant can utilize a computer-aided interview process to create pleadings for certain categories of actions, is designed to address the limited access problem. At the Small Claims Rules Committee meeting I attended at the June FL Bar meeting, that process was described and demonstrated by the Department of State Courts Administrators, with the representation that the process is going live for Landlord/Tenant claims statewide as of September 11, 2015. The ABA has recognized that the use of ODR provides a means to alleviate the logjam to access for civil litigants without resources to hire counsel. From my perspective, this position raises a few questions and assumptions that need further examination. Woven into the discussion on the utility of ODR is the concept that it provides a panacea for the “unavailable counsel” problem that so many civil litigants face today. The ABA article points to the long-standing call for a civil Gideon rule, and that using these kinds of programs might take up some or all of the slack. These may be the kinds of matters that show up in a small claims court, such as creditor/consumer financial disputes; contract disputes between a consumer and a service provider such as a remodeler; terminated employees claiming loss of benefits or wages they believe are owed. Litigants who are compelled to come to court without counsel may also be involved in family court proceedings or domestic violence proceedings. Likewise, civil litigants who can’t afford counsel find themselves acting pro se in matters involving workers’ compensation, and unemployment compensations, as well as social security disability hearings. Or, a litigant may be acting pro se in a federal court on a Constitutional rights claim. It occurs to me that we are already doing in Florida what the ABA is proposing – namely, claims in Florida’s courts are required to participate in mediation before being tried before a judge or jury. And the mediation process does result in huge efficiencies to the courts and the participants in the process. See [insert DRC or judicial circuit statistics here]. We do it with actual, in person mediators , however. Perhaps what should be considered is making dispute resolution participation mandatory at an even earlier stage of the proceedings, not just once the case is filed and issue joined. I also want to point out that the FL courts DIY process, where a pro se litigant can utilize a computer-aided interview process to create pleadings for certain categories of actions, is designed to address the limited access problem. At the Small Claims Rules Committee meeting I attended at the June FL Bar meeting, that process was described and demonstrated by the Department of State Courts Administrators, with the representation that the process is going live for Landlord/Tenant claims statewide as of September 11, 2015. Simultaneously, injured claimants are barraged with advertisements, advising them to never talk directly to an insurance company representative and to always head straight to a plaintiff attorney once any substantial injury occurs to them or a loved one. In the face of these competing dichotomies, how can mediation help? Mediation, when done effectively, can facilitate proactive resolution. First, it provides the insurance professional a way to do what is necessary to realistically evaluate a claim. One way that insurance representatives may begin to assess claims is to determine if there are similar types of claims in the venue involving similar types of injuries. Adjusters also assess claims values based on the collective experience of their organization. While helpful, these tools merely allow a “generic” assessment of what a potential value might be. To move from generic value to a value relative to a specific injured party, additional information has to be developed. In mediation, plaintiff’s counsel and a claimant will be more likely, particularly given the confidentiality that governs the process, to offer this information. The mediation joint caucus may be the first and only time that the injured party can speak directly to the claims professional present to resolve the matter.