Specialties & Sub-Specialties Commercial, consumer, employment, ERISA, personal injury, insurance, construction and business disputes.

Transcription

1 A. Michelle Jernigan 1060 Maitland Center Commons Suite 440 Maitland, FL Specialties & Sub-Specialties Commercial, consumer, employment, ERISA, personal injury, insurance, construction and business disputes. Current Employer-Title Upchurch Watson White & Max - Shareholder Profession Arbitrator, Mediator Work History Shareholder, Upchurch Watson White & Max, 1992-present. Experience as a Mediator Has mediated over two thousand five hundred disputes to date. 1. Mediated over 200 employment cases, including race discrimination, gender discrimination, discimination based on religion, sexual harrassment, discrimination on the basis of national origin, as well as wage and hour disputes. Most of the suits have been brought by individuals against large corporations, one of which was a law firm, some retailers, some churches and other businesses. Most of these were federal court cases with demands exceeding $100,000 up to one million dollars. 2. Mediated more than 300 ERISA cases, which are usually disability cases against insurance companies. Some of these cases are suits to recover life insurance proceeds or suits to recover health insurance benefits. These are mostly federal court cases and the amounts in controversy on the disability cases vary considerably, depending on the type of job held by the claimant and their age. The suits to recover insurance proceeds typically involve a dispute between beneficiaries. These are federal court cases and range in value from $75,000 to over one million dollars. 3. Mediated hundreds of hurricane claims involving property adjusters and homeowners after the 2004 hurricanes. These were pre-suit cases and involved losses from $30,000 to $500, Mediated hundreds of general commercial cases, which involve business break-ups, unpaid debts, breaches of covenants not to compete, fraud cases, foreclosures (residential and commercial), landlord-tenant cases (retail, residential and office) and contract disputes.

2 5. Mediated 25 to 50 construction cases against contractors, subcontractors, and architects for defective construction. Most of these have involved counterclaims and crossclaims. The amounts in controversy range from thousands to millions of dollars. 6. Mediated over 200 personal injury cases. Some of these are slip and fall cases against grocery stores and other retailers. Some of these have been automobile negligence cases. 7. Mediated 4 to 6 family business disputes and 4 to 6 trust and estate cases, involving large amounts of money and complex business and estate issues. These are usually lengthy and involve knowledge of family dynamics. 8. Mediated 4 or 5 copyright and trademark violations involving well-known retailers. 9. Mediated 50 to 100 divorce cases, some of which involve multi-million dollar issues. Representative Issues Handled as a Mediator 1. Employment cases mediated included the following issues: liability for discrimination, retaliation and whistle blower claims. Damage issues involved economic damages, pain and sufferring damages, punitive damages and attorney's fees. 2. ERISA cases mediated included the following issues: whether the person was disabled, whether there was coverage, and the amount of the coverage. In life insurance cases the issue was often who the intended beneficiaries were. 3. Hurricane claims mediated included the following issues: appropriate cure, cost to cure, additional living expenses, wind verses water damage and coverage issues. 4. Commercial cases mediated included the following issues: was there a breach of the agreement, what were the damages, who breached first, were there misrepresentations, were they relied on, was there a breach of a covenant not to compete, was the covenant reasonable in geographical limitations and scope, was there a breach of a lease, what were the damages, what was the value of a company and how should it best be dismantled, was a mortgage valid, what was owed on it, and was there any equity in the property, was a broker entitled to a real estate commission, and how much. 5. Construction cases mediated included the following issues: expert issues on whether work was defective, appropriate measure of damages, such as cost to cure, lost profits, delay damages, and determining liability of architect, engineer, contractor and sub-contractors. 6. Personal Injury cases mediated included the following issues: who was negligent, was there comparative negligence, was there causation and what were the damages for the injuries suffered, were the injuries permanent in nature and was there loss of consortium. 7. Family business disputes and trust and estate cases mediated included the following issues: which will was valid, was there a valid will, what was the interpretation of the will and who are the intestate heirs, what are the value of shares, how many shares of stock should someone have, was a vote proper, did the

3 company meet the corporate requirements, what was the proper interpretation of an employement agreement, what are the terms to be included in a shareholder's agreement, is a shareholder's agreement valid, what is the proper interpretation of a shareholder's agreement. 8. Mediations involving copyright and trademark violations included the following issues: whether permission had been granted to use the copyright or trademark, whether the product was similar or like the protected product, what the terms of an injunction would contain, whether the violation was intentional or not. 9. The Divorce cases mediated involved the following issues: parenting, alimony, child support, equitable distribution of assets and liabilities, attorney's fees, value of businesses, value of stock and stock options. 10. Insurance cases mediated involve breach of contract, bad faith claims, and issues regarding attorney's fees and coverage. Years of Practice as a Mediator 25 Total Number of Cases Mediated 2500 Mediation Philosophy 1. To quote one of her partners, Rod Max, mediation is the "humanization" of the judicial process. Mediation affords litigants with an opportunity to exercise some control over their destiny. Litigation can be considered "civilized welfare" and places all decision-making in the hands of those who do not have an investment in the outcome of the dispute. Mediation is the best opportunity litigants have to explore and analyze all available options for settlement. Mediation is a highly successful process, yeilding a settlement in roughly 80 percent of cases. It affords parties an opportunity to vent and express their views and feelings in a protected enviornment. Lawyers play a vital role in the mediation process, but it is a process that was designed for the parties. The mediator is a neutral, third party facilitator of the parties/attorneys' communications and negotiations. The mediator should play an active role in directing and structuring the process in a way that is most likely to build consensus and yield resolution. The mediator should provide an enviornment where parties and attorneys can exchange information, and their differing views and perspectives. Mediators should assist parties in reality testing, and challenge them to conduct an evaluation of their positions. A mediator should not be a message carrier, but should recognize that private sessions play a vital role in the mediation process. 2. Michelle expects the parties to use their best efforts to explore settlement. She recognizes that mediation should be a voluntary and consensual process. Therefore, persuasion is appropriate, but self-determination of the parties is preeminent. Mediators should guide the process, but never dictate the outcome. Mediators should empower the parties and assist them in expressing their views and positions. With the help of the mediator and their attorneys, parties should

4 evaluate settlement options and weigh those against potential and probable outcomes at trial. 3. Michelle will usually start mediation with an opening presentation regarding her background, her role in the process and then briefly describe the process. She will then conduct a joint session where the attorneys make a presentation regarding their case. Parties are invited to particpate, but are not required to do so. After the presentations in the joint session, she will typically hold private sessions with the parties and their respective legal counsel. In the private sessions she will speak with the parties and their legal counsel about their legal position, the probable consequences of a trial, the risks of litigation, the certainty of resolution and their negotiation strategy. Proposals will generate from these private sessions and then the negotiation phase of the mediation begins. If a settlement is reached Michelle will often bring parties together to work out the details, unless they prefer to do so separately. If a case results in an impasse, Michelle will follow-up in a few days to further explore the possibilities of resolution. Mediation References John Bolanovich, john.bolanovich@wilsonelser.com, (407) ; Jill Schwartz, jschwartz@jschwartzlawfirm.net, (407) ; Kristina Pett, kpett@pettfurman.com, (561) Alternative Dispute Resolution Training Mediation Training Center, Critical Thinking, 2013; Neuroawareness Consulting Services Certificate program for Negotiation and ADR professionals, 2013; Labor & Employment Law Section of the Orange County Bar Association, Alternative Dispute Resolution in the Employment context & Supreme Court cases of significance in the FMLA context, 2013; ACCTM, Advanced Mediation Training, 2012; Dispute Resolution Center, 19th Annual Conference for Mediators and Arbitrators, 2011; ADR Section of the Orange County Bar Association, Inaugural Aspects of ADR Seminar, 2011; ACCTM, Advanced Mediation Training, 2010; Florida Defense Mediation and Lawyers Association, Mediation and ADR Seminar, Professional Licenses The Florida Bar, 1982; Florida Real Estate Sales License Sales Associate - SL Professional Associations Florida Association for Professional Mediators; American College of Civil Trial Mediators; Florida Bar (Employment Law Section and ADR Section); Orange County Bar Association (Labor and Employment Law Section). Education Stetson University (BS-1979); Stetson University College of Law (JD-1981). Publications and Speaking Engagements

5 The "Mediator's Role In the Family Business" American Journal of Mediation (2008) "Mediation Proceedings" Chapter 8, Florida Dissolution of Marriage, 4th Edition (1993) "If We Knew Then What We Know Now: Twelve Mediation Lessons Learned the Hard Way" The Florida Bar ADR News & Tips (Fall 2011) "The Magic of Mediation" (2003) "How Clients Think - The Brains Behind Decision-Making" (2013) Speaking Engagements: "A Guide to Effective Arbitration Advocacy" (June 17, 2013) "Ten Most Common Questions in Mediation" (May 15, 2013) "Rule What the Lawyer Needs to Know" (2012) "What's Going on in the Other Room - Getting Inside the Minds of the Other Parties" (2008) "Preparation, Risk Analysis & Bracketing" (April 11, 2008) Languages English