If you would like additional training in building a more profitable mediation practice while earning CLE/CME credits, check out our Mediation Mastery seminars.
If you are an accountant, paralegal or out of state lawyer, you must be extremely careful as your services or actions in Florida may constitute the practice of law, which can lead to a criminal violation and civil liability.
Any person not licensed or otherwise authorized to practice law in this state who practices law in this state or holds himself or herself out to the public as qualified to practice law in this state, or who willfully pretends to be, or willfully takes or uses any name, title, addition, or description implying that he or she is qualified, or recognized by law as qualified, to practice law in this state, commits a felony of the third degree.
Florida Statues, § 454.23. The main issue is whether the activity you plan to engage in, in the State of Florida, constitutes the unlicensed practice of law. Florida follows a two-part analysis. First, it must be determined whether the activity is the practice of law. Then, it must be determined whether the practice is authorized. If the activity is the practice of law but the activity is authorized, the activity is not the unlicensed practice of law and may be engaged in by a non-lawyer, or non-Florida lawyer.
The test to determine whether a service or activity constitutes the practice of law was provided by the Florida Supreme Court in State Ex Rel. Florida Bar v. Sperry, 140 So.2d 587, 591 (Fla. 1962), J. vacated on other grounds, Sperry v. Florida ex rel. Florida Bar, 373 U.S. 379 (1963),, as follows:
…if the giving of [the] advice and performance of [the] services affect important rights of a person under the law, and if the reasonable protection of the rights and property of those advised and served requires that the persons giving such advice possess legal skill and knowledge of the law greater than that possessed by the average citizen, then the giving of such advice and the performance of such services by one for another as a course of conduct constitute the practice of law.
Under Florida law, the word “person” includes business entities. When applying this Sperry test it should be kept in mind that “the single most important concern in the Court’s defining and regulating the practice of law is the protection of the public from incompetent, unethical, or irresponsible representation.” The Florida Bar v. Moses, 380 So. 2d 412, 417 (Fla. 1980). There is no specific list of activities fully enumerate the unlicensed practice of law; however, Florida Court cases have held the following to constitute the unlicensed practice of law:
- Drafting corporate documents (articles, charter, and related documents) for other persons;
- Representing other persons in court, arbitration, and government administrative agency hearings;
- Preparing or drafting legal documents or forms for others;
- Drafting documents to be field in court or administrative or judicial agency;
- Modifying documents approved by the Florida Supreme Court;
- Holding oneself out as an attorney either expressly or impliedly (including using the titles or initials: “Esquire”, “J.D.”, “attorney”, “lawyer”);
- Giving any advice on any claims filed, or to be filed in Court or a government administrative or judicial agency;
- Helping others select legal documents or forms, or complete legal documents or forms;
- Preparing or drafting a contract for sale or purchase of real estate;
- Negotiating agreements (whether oral or written) on behalf of others; and
- Giving any advice on, or interpretation of any statute, regulation, judicial case, or code.
While this is not an exhaustive list (there are over 230 cases dealing with the unlicensed practice of law), it covers all of the major and common services and activities addressed by the Florida Courts to date. If the service or activity does not constitute the practice of law, then it can be engaged in without further analysis.
If you plan to engage in any of the above, or in any activity that you suspect is the practice of law in Florida, the next step in the analysis is to determine if the service or activity is authorized. If authorized, then it is not the unlicensed practice of law and may be engaged in. The Florida Bar v. Moses, 380 So. 2d 412, 417 (Fla. 1980). Authorization can be strictly service or activity related or person-activity related. Generally, if the service or activity is not considered to be the practice of law, there is no prohibition to engaging in the activity or service. Person-activity related authorizations relate to specific authorizations given to specific people, based on their profession, training, or other criteria. For example:
- Accountants – accountants are not permitted to draft corporate documents, but are permitted to represent others before the IRS in tax matters because federal law authorizes this activity.
- Public Adjusters – public adjusters are not permitted to represent insureds against insurance companies generally, but are permitted to negotiate home property damage issues with insurance companies.
- Corporations – a corporation is not permitted to be represented by a non-lawyer, but a corporation may have a non-lawyer represent it in small claims court, if not eviction related.
- Non-Lawyers and government – non-lawyers, including non-Florida lawyers, may represent others in federal government agencies if those agencies legally authorize the representation and approves them.
- Non-Florida Lawyers – non-Florida lawyers may establish an interstate practice if the attorneys follow the guidelines of The Florida Bar v. Savitt, 363 So. 2d 559 (Fla. 1978). Even then, the non-Florida lawyer’s practice will be limited.
- Title Insurance Agents – Title Insurance Agents and other specific classes of persons can prepare certain real estate related forms and agreements.
- Law Students – law students or graduates who are not yet members of the Florida Bar may apply to be Certified Legal Interns to represent certain individuals in limited circumstances.
- Foreign Legal Consultants – lawyers licensed to practice law outside of the United States can apply to the Florida Bar to become a Foreign Legal Consultant to advise clients on the laws of the bar under which he/she is admitted to practice. These lawyers are not authorized to provide legal services or activities in any other capacity.
- Authorized House Counsel – An attorney licensed in a state other than Florida or a foreign country may work in Florida as Authorized House Counsel for a company if the attorney registers pursuant to Chapter 17 of the Rules Regulating The Florida Bar.
Be careful. If there is any doubt whether a service or activity you are currently engaged in, or plan to engage in, may constitute the practice of law, please let me know and we will provide an analysis specific to that issue for you. You can email me at email@example.com or call me at 407-647-7887.
How can a mediator’s past experience help them when parties hit a wall during Mediation? Maybe it’s time to get some Perspective.
I wanted to share a Mediation Insight I hope may be useful that deals with the ways in which a mediator’s past personal and professional life experiences can serve to make us better mediators.
As an artist and a professional science fiction cartoonist, I have found that you sometimes get stuck when you are creating and may not know where to take your pencil or brush next.
Artists are trained to either:
A. Step back in order to gain perspective and/or see the piece from a different perspective.
B. Take a break and come back to the piece later.
By the same token, I have found this concept helpful as a mediator when the parties hit a roadblock on some issue during mediation. So when this happens in mediation, consider:
1. Try moving onto another related issue as you try to get the parties moving forward again. Then as appropriate, swing them back to the issue they were stuck on previously.
- Try taking a break. Sometimes fresh air or getting something to eat and/or drink can also help to get parties moving again.
And remember that being a well-rounded person with other interests and experiences makes us better mediators.
We have all had experiences that have shaped us into the people that we are today. For an attorney/mediator for instance, your Litigation experience, will probably use your negotiation experiences as a template to guide parties through mediation. Sometimes, even with a great Alternative Dispute Resolution strategy in place, you still hit a wall in which both parties seem to be stuck.
If you would like additional training in building a more profitable mediation practice while earning CLE/CME credits, check out our Mediation Mastery seminars.
How to Choose a Mediator
The right of self-determination in mediation and the parties’ first attempt at collaboration starts from the decision to mediate and the act of choosing an appropriate mediator.
The right to self-determination – whether the choice of the right mediator is based on cost, qualification, experience, subject matter expertise, ability, effectiveness, perception, or on any other basis – is critical to framing the mediation and the parties’ hopes of success. Therefore, it is critical that the mediating participants, and their legal representatives, are comfortable with and confident in the mediator to help them resolve their dispute effectively, thoughtfully, compassionately – and at a reasonable price. If there is any disagreement or discomfort, look for another mediator.
Some of the issues mediating parties should consider during the process of selecting a mediator are as follows:
- Tools in the toolbox. The mediator should have “more than one tool in his/her toolbox.” If the mediator only has a hammer, that mediator will use it, and every issue will look like a nail. Your mediator, staying with this analogy, instead must have a took chest with a variety of tools to use – i.e., be knowledgeable and skilled at multiple conflict resolution models, including, but not limited to the following eight (8) basic models:
- The Thomas-Kilman Conflict Resolution Model – The mediator should understand the conflict between negotiating parties’ desire to satisfy their own interests and concerns, and the interests and concerns of their counter-part. This requires an understanding of the five basic conflict resolution styles and the pros and cons of using each style. It also requires a working knowledge of how to help the parties navigate from one conflict resolution style to the other in a fluid manner. The five styles are: 1) Competition; 2) Avoidance; 3) Accommodation; 4) Compromise; and 5) Collaboration. A skilled mediator will be able to recognize the style used by each party (and their representatives) and help each of them individually, and all of them collectively, move from Competition to Collaboration, which exponentially increases the likelihood of reaching an agreement at mediation.
- The Conflict House Model – The mediator should understand how to help the parties have difficult conversations in a constructive way without alienating each other with trigger words or acts, attacks, micro-aggressions, etc… Using this model, a skilled mediator will be able to help the parties, and their lawyers, set a constructive and positive tone before the mediation starts in a confidential pre-mediation conference. Done effectively, on the date of the mediation, the parties can avoid derailing the mediation, and the opportunity to reach an agreement, at the beginning of the process.
- The Empathy Model – The mediator should understand how to help the parties recognize their inherent empathy for the other parties, and build on that empathy and understanding. If done effectively, throughout the process the increased empathy will help the parties focus on the critical underlying interests, as opposed to positions. This also accelerates the potential for an agreement.
- The Value Creation Model – The mediator should understand how to help the parties use the information they know about each other (whether gathered before or during the mediation process) to create a value proposition that will help the mediating parties do the jobs they have to do regarding the conflict, reduce the pains experienced, and increase the opportunities for the mediating parties to get the gains they want.
- The Speed of Trust Model – The mediator should understand that trust has several waves, including self-trust, relationship trust, organizational trust, market trust, and societal trust. With this understanding as the foundation, the mediator can effectively help the mediating parties demonstrate:
A.their integrity, while acknowledging the other side’s integrity;
B.their intent in a constructive way, while seeking to understand the other side’s intent without attacking or feeling attacked;
C.their capabilities and the other’s side’s capabilities, and hone in on the relevance; and
D.their ability to produce results on both sides.
If the mediator is able to do the above effectively, the parties will have a better chance of recognizing the elements of integrity trust in each other, and build upon it, which is necessary before embarking on the performance trust issues. Both are critical to facilitating a meaningful and lasting agreement between the parties.
6. The Behavioral Model – The mediator should understand how his/her behavior and the behavior of the mediating participants affect the mediation process, and consciously work towards modeling the right behaviors, and encouraging the same with the mediating parties. Here is a list of the behaviors:
N. Inspiring Trust
- The Action Plan Model – The mediator should understand how to help the parties create a reasonable and workable action plan.
- The Transformative Model – The mediator should be able to help the parties transform from feeling victimized to feeling empowered during the mediation process. Effective mediation requires self-determination, therefore, it is critical that the mediator understand how to help the mediating parties graduate from victimhood to empowerment. A skilled mediator understands that when a mediating party feels like a victim, it is likely that he/she will not be very productive or constructive during the mediation process. There is also a risk that the other party, recognizing the vulnerable state of the victimized party, may take advantage of the “victim”. Therefore, the ability to help each party transition from the feeling of being a victim to the feeling of being empowered is critical and necessary to help them meaningfully participate in the mediation process. Once empowered, the parties can transition in to a healthier conflict resolution state, allowing them to meaningfully transition from competition to collaboration.
- The EQ Factor. The mediator also should have a high degree of “emotional intelligence.” He/she must be able to regulate his/her own behavior in such a way to take a leadership role during the mediation, understand how to regulate his/her relationship with the parties and their counsel, and help the parties regulate their relationship so that they do not alienate each other, but work constructively towards a common resolution.
- The Impact of Life Cycles. Where the mediating parties are in their personal, relationship, family, professional and business life cycles affect how they view the world, how they relate to each other, and how they resolve disputes. Therefore, mediators should have a basic understanding of each life cycle, the stages of each life cycle and the expected skills, knowledge, abilities experiences, focus, needs, emotions, maturity level, and key relationships which are normal and predictable during each stage. With this knowledge, the mediator will be in a better position to:
A.“read” the parties,
B.understand each party’s points of view,
C.identify each party’s underlying interests,
D.understand the jobs each party has to do during the mediation process,
E.identify the pains that each party experiences related to those jobs, and
F.identify the gains each party wants from the mediation.
This will help the mediator help the mediating parties not only address the obvious issues raised during the mediation, but also the underlying and collateral issues that can be just as, or even more so important.
- The Importance of Experience. The mediator also should have relevant and extended experience as a mediator. A novice mediator, including a mediator who is transitioning into mediation as a second career (such as a retiring attorney or retiring judge) usually do not have the knowledge, skills, experience and abilities to be as effective as a mediator who has been mediating for several years. In their professional life cycle as a mediator, they are, in essence, baby mediators. While these mediators may have the core subject matter knowledge and experience, they still need to develop their mediation knowledge, skills and abilities to be effective. Ideally, the mediator should be entering the prime of his/her professional career as a mediator.
- The Role of Gravitas. A mediator also should have some “gravitas.” An experienced attorney, a retiring attorney or retiring judge would have gravitas earned from their years of experience and/or former profession, which can be helpful to instill a sense of confidence in the parties and their lawyers. This gravitas can be especially helpful in cases where the parties are looking for “parental” guidance in the process, or will rely on the mediator for an evaluative approach.
- The Subject Matter Expert. Will a subject matter expert be helpful during the mediation process? This is an important question to answer before making a list of potential mediators. In some instances, a subject matter expert will be necessary to understand the vernacular and language of the mediating parties. For example, if the mediating parties are discussing the intricacies of a jet engine, it will be helpful if the mediator has a mechanical engineering background. In the majority of instances, however, an understanding of the subject matter of the mediation is not as relevant. For example, a mediator does not have to have any restaurant operation experience to mediate a dispute between two partners who own a restaurant and are dissolving their business relationship. Before choosing a mediator, it is a good idea to discuss the subject matter issue with the opposing party or his/her representative before developing a list of possible mediators. If a subject matter expert is critical, then only select mediators with that expertise. If it is not as critical, but still important, if the mediator you would like to use has the skills, knowledge, experience, gravitas, EQ, and has the ability to add value, consider providing educational information to him/her so that he/she can be familiar with the subject matter. This will help the mediation process flow constructively.
- Fighting the Urge. When selecting a mediator, the lawyer should fight the urge to retain a colleague or friend as a mediator based upon personal or professional relationship only. Instead, selection of a mediator should focus on the above factors, as well as any other factors the parties and their representatives believe are important to help them navigate the mediation process as constructively as possible.
- Price vs. Value Added. Finally, consider the value of a mediator who can give you the best chance of resolving your dispute before going to court. Paying a “good” mediator at a higher hourly rate saves tens of thousands of dollars that would be expended in litigation. A day of mediation can cost the parties approximately $2,000.00 each (the average cost of a “good” mediator – one who is skilled, knowledgeable, high in IQ, experienced, and has some gravitas – is $500.00 per hour). While prosecuting or defending a lawsuit, can cost, at the low end, up to $25,000.00 in lawyers’ fees, plus costs (excluding court-mandated mediation before trial), in many cases, litigation costs easily can exceed $100,000.00 before a final resolution. In addition to the financial costs, there are the emotional costs, lost opportunity costs, the costs associated with lost time, and the costs of lost or deteriorating relationships. These all add to the expensive litigation financial price tag. A “good” mediator may be able to help the mediating parties eliminate or mitigate these non-financial costs during the mediation process.
If you are interested in learning about my mediation skills, knowledge, experience, EQ, and how I can add value to your mediations, please email me at firstname.lastname@example.org or call me at 407-647-7887. I have experience mediating a wide range of Federal, State, and Territorial cases before and during the litigation process, including:
- Ad Valorem Taxes between Counties and Businesses/Individuals
- Bankruptcy-related matters (objection to claims, adversary proceedings, etc….)
- Business Relationship and Contract issues (partners, shareholders, joint ventures, employees, vendors, contractors, suppliers, investors, debtors, creditors, etc…)
- Closely Held Small & Medium-Sized Business (“SME”) and Family Business Disputes
- Class Action (experience as certified class counsel)
- Civil Rights
- Commercial Landlord/Tenant- pre and post-litigation
- Complex Litigation (complex issues and multiparty)
- Complex Family Law cases
- Construction Cases (including claims involving owners, subs, bonds, and indemnity agreements)
- Government Related Disputes – Federal, State, County, and City
- HOA/COA cases, pre, and post-litigation
- Insurance Cases – coverage, real property, high-value personal property, and personal injury.
- Intellectual Property
- Probate Administration and Distribution Disputes
- Professional Malpractice
- Property Disputes
- Religious Organizations Disputes
- Trust Administration and Distribution Disputes
Emotions and Value Creation.
Emotions are prevalent in every negotiation setting, whether or not the parties use a mediator to help facilitate the process. Learning how to identify our emotions and our negotiating counterparts’ emotions, how to categorize the emotions, and how to strategically use these emotions can give you an advantage during the negotiation process and help you create value for yourself and your counter-part. Generally, emotions can be broadly categorized as either positive or negative. Positive emotions include feelings that serve you well, including happiness, laughter, joyfulness, excitement, hopefulness, etc.
Negative emotions include feelings that can can serve you well at times but often does not, including anger, anxiety, fear, etc… Before you engage in any negotiation, you should take time to assess your own emotions and what you know about the emotions of your negotiation counterparts. To assess your own emotions, ask yourself questions which force you to think about how you have reacted to questions, scenarios, and experiences in the past. For example: How do I behave under pressure? What do I feel when X happens? How do I react to Y? To assess your counterparts’ emotions, ask similar questions to people who have interacted with them in the past, including the receptionist at their firm, their secretary, co-workers, prior customers, etc.
If you do not have access to anyone who has interacted with them in the past, call them and test their emotions with trigger questions or scenarios. With this information in hand, prepare for your negotiation by envisioning varying scenarios during the negotiation process, and plan how you will use your emotions to your advantage and how you can trigger the required emotions from your negotiation counterparts. For example, at the beginning of the negotiation, you may decide to be warm and friendly to catalyze positive emotions in yourself and your negotiation counterparts, as it will be natural for them to mirror your emotions. Since value creation usually occurs early on in the negotiation process, this technique can set the stage for value creation early. At the later stages of the negotiation process, consider using a negative emotion as a strategy to help you claim more value, as negotiators tend to give more concessions to parties who express anger, even if not genuine.
Finally, throughout the negotiation process look for signs of how your negotiation counterparts use their emotions. Are they being as strategic as you, or are they unable to understand and control their emotions? If the latter is true, all you have to do is identify what triggers their positive and negative emotions and strategically trigger these emotions to get the results you desire. If you trigger positive emotions, stroke these emotions in a manner that encourages them to see the commonality of their needs and interests to your needs and interest and encourage them to help you meet your needs and further your interests, which will help them in the long run. If you trigger negative emotions, demonstrate your understanding of their concerns and feel their pain by empathizing with them, when appropriate, and show them how they can help meet their need and further their interests by helping you meet your needs and helping you further your interests.
How to select a good Intellectual Property Mediator
Intellectual property (“IP”) is a complicated field of law, as anyone who practices in that area knows. Intellectual property disputes are often intricate – and each one is unique, since many disputes hinge on how multi-factor tests would be applied or interpreted by a jury. Therefore, IP disputes need a specific kind of mediator who is prepared to handle that type of case.
For many intellectual property practitioners, it can be challenging to find a mediator who’s experienced in that field. Even most retired judges were not on the federal bench and do not know much about IP law.
Qualifications of IP Mediators
The laws are changing as technology changes, so intellectual property practitioners need a mediator who is up to date with the latest changes and who understands the latest technology (especially for copyrighted code and/or patent cases). Sometimes, that can be hard to find when you are also looking for someone with legal training (particularly because intellectual property law is not tested on the bar exam, so not all attorneys are knowledgeable about that field of law).
Therefore, it is important for intellectual property practitioners to search for mediators who are experienced attorneys who know about the type of IP the dispute centers around (e.g., trademarks, copyrights, or patents). An attorney who is experienced in prosecuting trademarks/patents and handling infringement issues will be able to give both parties in the mediation the best perspective on the case in order to move the mediation forward – and lead the parties toward settlement.
A mediator who knows the elements of IP prosecution and/or infringement can go through each relevant element with the parties in detail and help them weigh the pros and cons of their cases (e.g., the fair use defense, consumer confusion questions, etc.).
Also important, though, is the mediator’s skills in helping parties communicate. A mediator who knows how to reality check with the parties regarding likely outcomes post-mediation so parties can make informed decisions during mediation is a huge asset when you are looking to settle a case.
Moreover, intellectual property practitioners are often searching for a mediator who will understand the created IP is like someone’s baby because of how much time and effort likely invested in it. Mediators who respect that the disputed IP is part of who the clients are will be able to communicate most effectively with the parties and, thus, will be most likely to help the parties reach a settlement.
Furthermore, it’s helpful if the selected mediator practices IP law because then that mediator will know what elements an intellectual property settelement agreement should include and can be prepared to draft an appropriate settlement agreement if a resolution is reached at mediation.
At CPLS, we understand the importance of selecting a mediator who is experienced in intellectual property law. Christy L. Foley is a mediator with a decade of experience who has focused her legal practice on IP issues for the past 9 years. She’s experienced in copyright and trademark prosecution as well as infringement issues, has a biotech background, and remains abreast of the latest trends in intellectual property law. If you need a trustworthy and knowledgeable IP mediator, then please give us a call at (407) 647-7887 or email Christy directly at CFoley@CPLSPA.com.