In this podcast, JAMS neutrals Mercedes Armas Bach, Retired Judge, 11th Judicial Circuit, Florida, and Scott J. Silverman, Retired Judge, 11th Judicial Circuit, Florida, discuss the growth and evolution of the ADR market in Florida. The conversation starts with a look back on how mediation and arbitration emerged and grew in popularity within the state. From there, the neutrals share their thoughts on how mediation has become the norm as an avenue for resolving cases.

The neutrals also discuss how Miami is well positioned for international cases and the industries where ADR is being increasingly utilized, including sports and entertainment, construction, technology and finance. Judge Bach and Judge Silverman reflect on the benefits of in-person and virtual hearings and the value that a hybrid setting may provide. The neutrals then go on to discuss the JAMS differentiators—including the collective legal experience of its panelists and their tenacious approach to case resolution—and how the provider is poised to continue to serve the Florida legal market for many years to come.

JAMS - Podcast

[00:00:00] Moderator: Welcome to this podcast from JAMS. In this episode, we're talking about the ADR market in Florida and what's driving its growth. With us are two JAMS neutrals and distinguished retired judges on Florida's 11th Judicial Circuit: Judge Scott Silverman, who spent nearly 22 years on the bench, and Judge Mercedes Armas Bach, who has 17 years of judicial experience. Both have been honored with lifetime achievement awards by the Daily Business Review for their service.

[00:00:38] Thank you both for joining us. Judge Bach, I'll start with you. The ADR market is thriving in in Florida, but not that long ago, it was a fairly nascent field. I know you know about that. So, what was the turning point in—in your mind?

[00:00:55] Judge Mercedes Armas Bach: Yes. I think that there have been two distinct points, one that is more specific to mediation, and that was in the early ’90s, when the courts started to mandate mediation. Mediation wasn't something that was widely accepted by the attorneys. They were reluctant to open that door, to be the first ones to make a move, to appear weak in [the] face of their opponents. And then the Supreme Court started to mandate mediation as a form of calendar control. The dockets were growing, and they encouraged it, and they mandated it. And then all of a sudden, it was in every trial order.

[00:01:38] So, judges were absolutely putting it in their trial orders. They couldn't get a trial date until they finished the mediation. And guess what happened? It started to work, you know, lawyers started trying it. They were compelled to go, and so they went. And they were getting the results. So, that was a mediation aspect. So, after the ’90s, that just kind of started growing organically until now; it's just part of litigation. The next big thing was more in tune with what arbitration has become. And that was in 2011, when the Supreme Court, with AT&T Mobility [v.] Concepcion, held that the Federal Arbitration Act preempts state law that prohibits contracts from disallowing class-wide arbitration.

[00:02:29] So, now if you have an arbitration clause, you can put in a prohibition against class action. And guess what? Everybody started doing that. Everybody started not only putting in the waivers, but using arbitration clauses to implement that. And all of a sudden, every big company started putting an arbitration clause in.

[00:02:51] Moderator: So, [there was a] confluence of courts mandating mediation and arbitration clauses being more prevalent. Judge Silverman, you've been a full-time neutral since 2012. How would you characterize ADR's trajectory in Florida? Can you measure its impact?

[00:03:07] Judge Scott Silverman: Well, I can say that Judge Bach is spot-on. Back in the early ’90s, ADR took off. Results and settlements usually took place before then on the courthouse steps—the proverbial courthouse steps—and ADR took it from the courtroom into the caucus room. And that's where cases are being settled now.

[00:03:27] Now, ADR, for all intents and purposes, has become the new trial. The irony, I find, about law schools and real life is that law schools continue to teach towards the trial, that the trial is the crescendo of everything that we do. And in reality, the trial is an anomaly. It is a footnote in the legal process because so few cases go to trial.

[00:03:53] And to give you an example of that, in 2023 in Miami-Dade County in the Circuit Civil Division—which I will tell you is one of the busiest civil divisions in the country—there were roughly 30,000 cases resolved—30,000. That's a lot of cases. The actual number is 30,265, but a lot of cases resolved. But there were only 272 juries selected. And of the 272 juries that were selected, only 227 of them resulted in jury verdicts. Now, what that means—again, in the real world, in the real practice of law—is you might have, as a lawyer, 400 cases in your file cabinet. And I don't know many lawyers that have that many, but let's say you do, right? Only three of those cases are likely to see the eyes of six jurors. And—and that means these cases are being resolved by some means other than a jury trial. Maybe the jury trial is the deadline. Maybe the jury trial is the stop sign that says, hey, we better do something before we go past the stop sign and go on a bad path of unknowns. And—and so, you know, ADR—yes, there is a trajectory to it, but I think that trajectory has really become a plateau, and we have become the norm of case resolution. It's no longer the attorney who goes, gosh, do I make the call to the other side and suggest settlement because—you know,—I know that's going to be taken as a sign of weakness? And so, I really don't want to make the call. No. What Judge Bach pointed out is absolutely spot-on, and that is judges are now ordering mediation as a precondition to potentially going to trial. And so, nobody has to make that first call any longer. It's just the norm, and it's been a very, very successful norm, as pointed out by the numbers.

[00:06:00] 2023 was not an exception. 2023 really is just an example of the last 20 years of over 99% of these cases being resolved by some means other than a jury.

[00:06:12] Moderator: And Judge Silverman. Talk about Miami. What explains Miami's role in becoming a hub for not just resolving disputes, but really international disputes increasingly?

[00:06:23] Judge Scott Silverman: Miami has oftentimes been said to be the gateway to South America, Central America and the Caribbean. I agree with that to some degree, but I think it's broader than that. I think Miami is the gateway to the world. There are over 100 consulate offices in Miami. Now, some of those are honorary consulates, but there are many that are actual consulate offices, and we're talking about from the Netherlands to Japan, from Peru to Mexico and all throughout the world. Romania, you know, Poland—they all have a presence in South Florida.

And so, we are—if you'll pardon the expression—"foreign-friendly,” and that is reflected not only in—in our court, the 11th Judicial Circuit, but also from our state legislature. In 2010, you know, the legislature adopted the Florida International Commercial Arbitration Code. In conjunction with that, we in the 11th Judicial Circuit created an International Arbitration Division of the court so that litigants—well, litigants is probably not the right word—but participants in arbitration have a place to go to with a judge that is familiar with international arbitration because they are educated on it. And we also have Miami International Arbitration Society, MIAS, which is geared towards addressing international arbitration matters. It's an organization which is, again, another way of showing that South Florida is open to international dispute resolution by way of arbitration. We are major. There's no question about it.

[00:08:05] Moderator: Yeah. Judge Bach, you agree with that, I assume. And any other factors you see as making Miami such a hotbed for international dispute resolution?

[00:08:16] Judge Mercedes Armas Bach: Well, Big Law has seen the potential in Miami, and tech and finance players have been flooding the area recently. And I think what's prompted the move is the friendly atmosphere that we have here towards business. And where there is business, there are going to be disputes. And where there are disputes, there is going to be alternative dispute resolution, which isn’t court. But it is unbelievable. If you look out the window of any high-rise in downtown Miami, there is construction going on that is international in scope.

[00:08:55] It isn't just local players. You've got investments from all over the world. On top of that, you throw in Lionel Messi, Formula One, the America's Cup, the 2024 the Copa America, World Cup 2026, Miami music, Art Basel. This is a global epicenter of sports and entertainment, construction, tech and finance.

[00:09:19] It's starting and it's just on the rise, and I just see that potential for ADR, for arbitration, for mediations, for all kinds of dispute resolutions being based here. Yeah.

[00:09:36] Judge Scott Silverman: Can I add to that too? I think when people come over to the U.S., if they're litigating in the courts, people from other countries are somewhat amazed by our open discovery by the courts—I mean depositions—the concept of depositions for some countries is just literally foreign. And so, when you come and you do an international arbitration, you know if there are going to be depositions at all, it's probably going to be limited.

[00:10:03] Oftentimes, cases are resolved on submissions alone. So, international arbitration in South Florida—it tends to mirror what foreign businesses are accustomed to in their own venues and their own jurisdictions. So, you know, we are welcoming, absolutely welcoming, to in—international participation in dispute resolution.

[00:10:30] Moderator: Yeah. Well, put Miami in context to some of the other major hubs that—that you're familiar with, Judge Silverman, how—how does Miami compare, and do you see other kind of markets trying to compete with—with Miami on the international disputes front?

[00:10:46] Judge Scott Silverman: Yeah. I mean, Atlanta wants to compete with us. New York is a separate animal. I mean, New York is New York, right? And Los Angeles to some degree, you know, has an Asia market. But we are open to everybody. I can tell you in the world of mediation, for example, I've mediated cases, particularly through Zoom, because Zoom has become just a wonderful asset for resolving disputes internationally—but I’ve mediated cases in Switzerland, in the U.K., in Beijing, St. Petersburg, Moscow. I mediated a case with two people laying in bed in Thailand because of the time differential. I mediated with the Athens government—pardon me, the Greek government in Athens.

[00:11:30] I've mediated throughout Central and South America, all within five feet of my refrigerator. Zoom has opened up the world, you know, to everybody. And, here's the really cool thing: People that are involved in disputes around the world have access to some of the best arbitrators and mediators literally in the world at JAMS and [do] not have to leave the comfort of their home. That's amazing.

[00:12:01] Moderator: Judge Bach, you know, physical location still matters, though, you know, even though technology has opened up so many possibilities, as Judge Silverman says. But what kind of disputes are you seeing growing fastest in Florida right now?

[00:12:17] Judge Mercedes Armas Bach: Yeah, well, like I said, I—what I have seen lately has been a lot of construction disputes because the huge amount of building that is going on, the amount of construction that's going on. The cruise industry creates a tremendous amount of maritime disputes as well. That's also a very large and growing industry here in South Florida.

[00:12:41] As Judge Silverman says, all those are international disputes, particularly the maritime cases. But construction cases and employment cases also have a component—an international component—because a lot of the times, the architects, the designers, the construction foreman—they're not—no longer here, and the ability to have them physically able to participate in Miami—it's something that's been from COVID on—just grown to a degree that we never would've expected prior to COVID. But in any growing city—and Miami is just on the cusp of becoming, if it isn't already—a huge inter international metropolis, you will see all kinds of disputes that require at least some local presence because the companies that may still be based here—the physical place where the construction or design dispute occurs are here, physically here.

So, I think what's been coming along is more of a hybrid situation. The law firms may be local. The law firms may be based here. Maybe half of your witnesses will be somewhere else, and some of the people still want to come in and look at you in the eye and try to make that kind of a connection.

[00:14:07] So, I think that's the beauty of what JAMS offers. We offer people the ability to have a wonderful workspace to work from, to participate in person—if that's what you wish to do—in a city where we have wonderful food, wonderful restaurants, wonderful shopping, beautiful people, fun evenings and great music.

[00:14:28] So, they don't mind coming. They'll say, can we do it in Miami? Can we come in? No, we don't want to do it all by Zoom. We want to be there. We want to be part of what's happening here. As Judge Silverman says, of course, there will always be people—because of the time change or because that's where they're based.

[00:14:46] I've done mediations and arbitrations with people in India sitting in a sidewalk cafe because they don't have internet anywhere else, or in China, in Africa. I had one recently where the plaintiff was in Africa. I don't even remember what country. But it's challenging when your time change goes into effect, but it's certainly more convenient than getting on a plane and having to fly for 36 hours just to get here to testify.

[00:15:14] Moderator: Judge Silverman, you know, obviously JAMS is one of several ADR providers, but how does it position itself in the market? What do you think is the selling point that you tried to communicate to, you know, lawyers and other parties?

[00:15:28] Judge Scott Silverman: Well, at the outset, JAMS, I believe, is the largest private provider mediation, arbitration services worldwide. Now it's not just size that makes us good, because size isn't necessarily good, right? It's not necessarily bad, but JAMS really should be measured by the quality of its neutrals. And I can tell you in my personal experience is it's all top-notch. And to draw an analogy, I guess, is if JAMS were hotel chain, we'd probably be the Four Seasons or the Ritz-Carlton.

[00:16:06] And, and for us, you know, people often go, well, you know, do you just handle, you know, cases that are, you know, millions of dollars? And the answer is no. No, it's not. Here's what we handle. We handle quote unquote big cases. We handle small cases, but really, from our perspective, I think, is we handle important cases. If the case is important to the lawyer and to the client, it's important to us, regardless of the amount in controversy. There is an attitude or a culture in JAMS I've seen about getting to a resolution. I think sometimes in a mediation, for some folks, when they hear the word no, they stop.

[00:16:51] I think for many of the neutrals at JAMS, when they hear the word no in a mediation, it's a dare. And it just drives them on to get a case resolved. Because for many of us, it's about the deal because that's why people are coming to us. Right? Listen, we're not inexpensive by any stretching of imagination, but we are good at what we do.

[00:17:16] You know. Does every case get resolved? No. But there's a tenacity in many, if not most, of the JAMS neutrals that I know of wanting to get a case resolved. You know, I think it's part of the culture. And I like to think you get what you pay for. JAMS has at least—I can tell you Miami—let me put it to you this way.

[00:17:39] You know, we have two former judges with JAMS who were in the Complex Business Division. We have a former chief judge. We have a former U.S. chief magistrate. We have, you know, Judge Bach, who's modest as a former administrative judge for the Civil Division of the county court in Miami-Dade County. These are all people that are very accomplished and very, very good at what they do. You know, it's one thing to be a lawyer and to mediate—and I get it—but, you know, we've seen the process. Yeah. We can't read people's minds. But, you know, with judges, we kind of know how they think. And there's a distinction there, but it's a meaningful distinction.

[00:18:24] You know, we are certainly not perfect because we're human, but we have a generally good idea of how cases flow and how they go. And, like I said, when you come to JAMS, you're getting that experience, and, you know, we oftentimes think amongst ourselves, you know, we probably don't know as much as we think we know, but in reality, we know a lot more than we think we know.

[00:18:49] But we don't know it all. But you'll get a hundred percent effort—yeah —from—certainly from the people I work with.

[00:18:57] Judge Mercedes Armas Bach: Judge Silverman is right that our panel is excellent, and on an individual basis, you are going to get really good talent and someone that's going to really care about your case.

[00:19:09] But one of the beauties about JAMS is that you don't just get the panel member that you're choosing. If you're doing a mediation, we bounce things off each other all the time. We get stuck—without breach of confidentiality in any way—but if we get stuck or we have an idea of, you know, maybe this isn't going in the right way, we pick up the phone; we talk to each other. Hey, listen, I'm at an impasse here. What do you suggest? How can I do a bracket in this case that's going to be acceptable? So, they're not just getting me; they're getting me plus the 20 other people that are in my group who are across the country. I have friends in California that are JAMS panelists that I rely upon for their expertise and for their experience. So, it's a package deal. You're going to get a package of JAMS support, not only with the neutrals, but with tech support and with clerk support as well. If you need something, research—I can't do it right now I'm in the middle of a hearing. Pick up the phone. Let's get a law clerk to help you with this discrete question that needs to be answered. So, it isn't just somebody that's going to be doing a mediation every once in a while in the middle of their very busy law practice, and they're going to dedicate, you know, a few hours a week. This is what we do. We do it full time.

[00:20:35] We don't do any other work other than this work. Everybody does it together.

[00:20:40] Judge Scott Silverman: Yeah. And Judge Bach brings out a really good point. This is what we do. We are full-time neutrals. We are not somebody who—we're not people that mediate or arbitrate on the side. This is what we do. And, listen, there are a lot of people that want to work with JAMS. You know, not everybody gets that opportunity because everyone's vetted.

[00:21:03] And so, when you do get to work for or with a company like this, it's an honor. And—and the quality—I'm just telling you—the quality of people that I get to work with, to me, is astounding. You know, I'm just very fortunate. I'll tell you another thing. You know—and I'm just throwing it out there—I've been mediating now with JAMS for 12 years. I left the bench to go with JAMS. I still, to this day—and I think this is true probably for most, if not all, of our neutrals—we still get a thrill out of every case that settles.

[00:21:41] It doesn't get old. For the—for the ones that don't settle—because not everything settles, right—some—sometimes just they can't settle for whatever reason. We're still thinking about how to move the ball forward, and to get—to send an email out to somebody or to make a phone call to somebody after the quote unquote formal mediation ends is really commonplace. Because we're all trying to think of ways to get it done.

[00:22:14] Moderator: So, I want to ask you both as we wrap up, you know, JAMS has been in Florida for more than a decade. What’s next? How do you see JAMS' presence in Florida emerging over the next 10 years?

[00:22:28] Judge Mercedes Armas Bach: I think that we've already touched on it. We see what's coming down the pike with the amount of tech and finance innovation that's going on in Florida and Miami, particularly the sports and entertainment portion of our practice. I think is going to grow as Miami becomes more of a hub and a center for those things. And, as I said earlier, we're on the cusp of becoming a very tech-, finance- and industry-based metropolis, I think we're going to be on the level of a Hong Kong and a Singapore in the sense that we are almost a city-state in the sense that we are part of Florida, but we are not Florida. We are part of the United States, but we are not the United States. Our food, our culture, our language is really very distinct and unique, and I think that that uniqueness is going to become our trademark, that Miami is going to be the it place for international disputes.

[00:23:37] Judge Scott Silverman: I think you are, again, so spot-on. To give you an—an example of that cultural difference, I was doing a mediation on Monday at a large law firm in South Florida, and a lawyer's walking down the hallway. And he recognized me. He said, “Aren't you Judge Silverman?” I said, “Well, I used to be.” You know. And I joke with him. But he said, you know, “I tried a case in front of you, and here's what I remember.” He said, “At three o'clock”—and I was amazed that he remembered this—he said, “At three o'clock, your bailiff walked in with Cuban coffee.” I had my expert witness on the stand, and everything stopped. And [the bailiff] started serving Cuban coffee to the jurors, to the witness, to the people in the audience, to the lawyers. Everything stopped for 10 minutes, and everybody drank their coffee.

[00:24:25] Then the case went on, and I was thinking to myself, you would never see this in probably any other part of the state, and certainly not in any other part of the country. But South Florida is different, and the cultural differences that exist between, let's say, Central and South America versus North America are not differences in Miami. You know, they're just accepted. And I was a kid growing up in Miami Beach. And I can tell you—and I've been in Miami for 50 years—if I saw a picture of when I moved down to Miami Beach or Miami and I compare it to a picture of today, we have become a mega metropolis.

[00:25:16] And I've never heard it said before, but Judge Bach—you know, my friend is always right—we are becoming a Hong Kong. The financial transactions that take place—banking, international banking, tech—all of these things have changed the city. And, you know, fortunately, you know, we have people that sat on the bench or are lawyers that are very familiar with the growth of South Florida and the needs for the legal community. We have people in place that understand this and that know the system; they know how it works. And—I'm going to say for the last time—that is absolutely invaluable. The people involved in disputes.

[00:26:03] Moderator: The local knowledge.

[00:26:04] Judge Scott Silverman: Yeah, local knowledge. It makes a big difference.

[00:26:07] Judge Mercedes Armas Bach: Yeah. We are part of what has happened in Miami. Scott and I have been here; we've been part of the legal system. I graduated from the University of Miami in 1979. That was a long time ago. So, I've been here my whole career, as has Judge Silverman. We've grown up with this city, literally. And Judge Silverman, just one little correction. Cafecito time is at 3:05 because that's our area code—for the phones is area code three—305—so it's become an institution at 3:05 we break out cafecito.

[00:26:46] Judge Scott Silverman: And if you can get a 305 area code. It's hard to get now. [It] didn't use to be.

[00:26:53] Moderator: OK. Well, Judge Silverman, Judge Bach, it's been such a pleasure, and thank you so much for joining us.

[00:26:59] Judge Scott Silverman: It's been a pleasure. Thank you.

[00:27:00] Moderator: All right. See you at 3:05 with a cafecito.

[00:27:04] Judge Scott Silverman: OK. You got it.

[00:27:08] Moderator: You've been listening to a podcast from JAMS, the world's largest private alternative dispute resolution provider. Our guest have been JAMS neutrals Judge Scott Silverman and Judge Mercedes Armas Bach. For more information about JAMS, please visit www.jamsadr.com. Thank you for listening to this podcast from JAMS.