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June 15, 2014
Letters

Competing With the Big Firms
I agree with Frederick Graves’s June 1 letter concerning the onslaught of TV advertising by big personal injury firms that is squeezing out sole practitioners and small firms.

I have spoken to a number of older PI attorneys who either have retired or are in the process of closing their offices due to a lack of clients.

I propose that small firms and sole practitioners can fight back. One way is to cut their fees. I currently sign up new clients at 25 percent, 33 percent, if suit is filed. I am a sole practitioner and can make a profit at 25 percent. The large firms need the extra 8 percent to pay for the big office, staff, and advertising. My competitive edge is the discounted fee.

Further, small firms and sole practitioners in a geographic area could band together and advertise as a group, for instance “Personal Injury Attorneys of Broward County.” Then rotate the client contacts among the group.

Group advertising coupled with discount rates could very well blunt the advertising assault by the big firms.

Frank Shaughnessy
Palm Bay

Competition
I have been a practicing member of The Florida Bar since 1959, particularly in the field of family law. Membership in the Bar was always a source of great pride because it meant that I was among those professionals maintaining the highest standards. In the words of the Bar itself in describing the purpose and history of the Bar states:

“An integrated Bar organization would also pave the way for a uniform discipline system, capable of weeding out unethical lawyers and assuring the public that only those with high standards would be allowed to practice.”

However, in recent years I have seen the Bar cross the line from assuring the public of the high standards of its members to itself providing services directly to the public. Those of us who practice in the field of family law know the serious implications of choices made by divorcing couples that are not apparent from a system of filling in boxes.

Yet, The Florida Bar now provides the public with “do it yourself” forms that compete with online $99 hucksters who will provide you with a divorce. Just fill in the boxes.

No need to get the help of Florida Supreme Court Family Law Mediators to help navigate you through important issues. No need to obtain the advice and services of those members of The Florida Bar who we insist engage in continuing legal education to provide you with the highest standards. Just fill in the blanks. The $99 hucksters need to beware, because The Florida Bar is cutting into their market.

Now when I pay my annual fees, it is with the resentment of knowing that I am funding my competitor, and not a very ethical one at that.

Gerald S. Deutsch
Ft. Lauderdale

Diversity
Regarding Charles B. Tiffany’s May 15 letter, I agree wholeheartedly that our Bar president got where he is because he is smarter, tougher, and works harder.

What Mr. Tiffany neglects to mention, however, is that our Bar president was also given the opportunity to show others that he was smarter, tougher, and that he would work harder.

Certainly Mr. Tiffany can recall when this was not the case with everyone.

William R. Mumbauer
Brandon

Dispute Resolution Center
In 2013, the last year for which I was able to obtain information, Florida’s Dispute Resolution Center (DRC) collected more than $600,000 from, at the time, the state’s roughly 6,500 court certified mediators. The DRC now has a staff of eight, two lawyers, and six support people.

For that sum, the DRC puts on an annual conference and provides staff assistance to four Supreme Court committees: Supreme Court Committee on ADR Rules and Policy, Mediator Ethics Advisory Committee, Mediator Qualifications Board, and the Mediation Training Review Board. These committees establish the qualifications necessary to become a court certified mediator in Florida, determine whether a mediator training program satisfies the Supreme Court’s learning objectives, hear and decide grievances against mediators for ethics violations, and, finally, determine whether mediators have satisfied the court’s continuing mediator education requirements.

In this regard, it does not vet any of the CME courses before they are marketed by independent vendors to the state’s court certified mediators. It publishes a compendium of data collected by others that details mediation activity in the various circuits, publishes Chapter 44 and the rules for certified mediators, and posts ethics decisions and grievance findings.

The DRC does not do any original work that I can find. It merely oversees or aggregates the work of others. It does no research nor does it sponsor or pay for anyone else’s research in the field of ADR. It does not maintain an ongoing collaborative relationship with any academic institutions in Florida. It does nothing to engage with minority communities or nonprofits to provide community-based ADR training. The training curriculum itself is stale and hidebound, little changed in the past 20 years. Although as much as $5 million has been spent by individuals over the past decades on becoming Florida Supreme Court certified mediators, the DRC has no data on the mediation business in Florida.

Failure to pay the DRC’s renewal fees on time results in a 100 percent penalty up to $750. In addition, on the first day after a mediator’s certificate expires, the mediator’s name is removed completely from the list of mediators on the DRC’s website.

The DRC policy is punitive and not supported by any legitimate administrative or policy considerations. The DRC has no detailed accounting of the annual mediation certification fees collected for each of the certification categories, nor does it maintain detailed financial records on how the DRC spent the more than $600,000 it collected from Florida’s mediators in fiscal year 2012-13.

In the past, the money collected by the DRC from mediator fees was deposited in a trust fund dedicated to supporting and furthering Florida’s ADR efforts. Today, the fees paid by Florida’s 7,000 court certified mediators are deposited into the court system’s general revenue fund. When I asked for the details of entries in a DRC spread sheet identified as “other personnel services,” and contracted services, along with an itemized annual budget for running the DRC — salaries, rent, office supplies, equipment and the like, I was told that the information would cost $2,226.70, because it would take the DRC staff 90 to 120 hours to gather the requested data. Needless to say, I did not write them a check.

It is clear to me that Florida’s 7,000 court certified mediators are paying to subsidize Florida’s court system. I am also of the view that the Supreme Court lacks the constitutional authority to have mediators pay for the state’s court-annexed mediation program, no matter how much it actually costs. There is no way for court certified mediators to know how their money is being used or whether it is being used in a way that advances ADR in Florida.

With regard to the functions that the DRC does perform, I suggest that neither the grievance nor ethics committees need very much assistance from the DRC to do their jobs. There is no shortage of experienced mediators and academics who could develop new training objectives that incorporate current theory, pedagogy, and practice. The marketplace will provide continuing education opportunities that practitioners find interesting and helpful.

If the DRC is to continue, it needs a new mission. Mediators are paying for what appears to me to be a petite bureaucracy within a larger bureaucracy, with no accountability to the people who pay the money. If the DRC cannot reinvent itself, let’s get rid of it.

Roger C. Benson
St. Petersburg

(State Courts Administrator Lisa Goodner responds: I am writing in response to the letter to the editor by a certified mediator regarding the Florida Dispute Resolution Center, which is a unit of the Office of the State Courts Administrator. The purpose of this response is to correct a couple of misunderstandings and to clarify the duties and responsibilities of the center.

First, the letter writer made several references to the center’s budget and expressed concerns about fiscal accountability. Previously, a separate trust fund had been specifically dedicated to funding alternative dispute resolution regulatory and oversight responsibilities as well as all state funded, court ordered mediation services in the trial courts. However, in 2011, the Florida Legislature made a policy decision to redirect the fees from that trust fund to the State Courts Revenue Trust Fund. Now, the center and trial court mediation services are funded through the same budgeting process as all other state funded court functions. The letter writer also mentions the authority to collect mediator certification fees. Florida Statutes §44.106 provides the authorization to charge mediator certification fees. Additionally, §44.108 specifically details the per session fees to be collected for court ordered mediation services provided by the state funded mediation program. This section also refers to the statutory filing fee levied on all proceedings in the circuit or county courts to fund mediation and arbitration services referenced in §44.106. The statute further directs the clerk of the court in each county to forward the monies collected from these fees to the Department of Revenue for deposit in the State Courts Revenue Trust Fund. These revenue sources, combined with general revenue and other statutorily based revenues, are utilized to fund the state courts.

Second, the letter writer states that there is no collaboration with a major academic institution. While the center does not directly partner with a university or institution of higher learning, the center does provide staff support to the Supreme Court committee that adopts minimum training standards for mediator training programs. Additionally, some certified training providers are major university affiliates. Moreover, as further elaborated in the description of its duties below, the center is not primarily an academic research entity, but a regulatory and policy development arm of the Office of the State Courts Administrator, the administrative office of the Florida Supreme Court. The center has a role to play in education and training, but primarily in coordinating and making available certification and continuing education opportunities.

The letter writer also asserts that the training curriculum for mediators is “stale and hidebound.” The Florida Supreme Court adopts minimum training standards, most recently in 2009 and 2013, and certified training program providers must meet those standards. If an individual has a concern regarding training being provided, that concern can be brought to the attention of the Mediation Training Review Board, the entity the court has charged with enforcement of the training standards.

The center is a unit within the OSCA whose duties encompass alternative dispute resolution, primarily mediation. With a staff of 10 — the director, a staff attorney, two professional staff, four administrative staff, and two full-time temporary clerical staff — the center performs many functions related to Supreme Court certified mediators, and may also address other issues that arise with regard to alternative dispute resolution processes. All mediator certification applications and renewals are processed by the center. At present, there are approximately 6,300 certified mediators, and new applications and renewals are received daily. Alternative dispute resolution trainers and training programs are also qualified and certified by the center.

Specifically, the center certifies mediators, certifies mediation training programs, sponsors an annual education conference for mediators and arbitrators, provides basic and advanced county mediation training to volunteers statewide, and assists local courts throughout Florida as needed.

As the letter writer mentions, the center also provides staff support to four Supreme Court appointed committees and their sub-committees: the Committee on Alternative Dispute Resolution Rules and Policy; the Mediator Ethics Advisory Committee; the Mediator Qualifications Board; and the Mediator Training Review Board. The staff support provided is similar in scope and purpose to the staff support provided by Office of the State Courts Administrator employees to all Supreme Court appointed committees.

For more information on the duties and responsibilities of the center, visit www.flcourts.org/resources-and-services/alternative-dispute-resolution.)

[Revised: 08-25-2014]