Samantha Joseph | Daily Business Review | October 6, 2016
The Fort Lauderdale attorney and founder of Atlass Dispute Resolution specializes in construction mediation. It’s not unusual, she said, to tour a construction site as the only woman in a group of male clients and lawyers.
She calls herself a “dirt lawyer.” And dirt lawyers typically aren’t women. Even rarer are those, like Atlass, who work as neutral third-parties—or neutrals—mediating high-dollar, multiparty disputes arising from construction litigation.
“The ratios are very, very small and I think that’s primarily because it’s been a male-dominated field since its inception,” Atlass said. “More men practice construction law, which leads to more men in mediation.”
Alternative dispute resolution is a competitive practice area where success depends on a neutral’s ability to persuade opposing litigants that he or she will understand nuanced issues and can guide participants to a fair resolution. With each side looking for even a subtle edge, it helps if parties believe the person they select to decide a case is apt to see the world from their perspective.
Women and minorities are underrepresented in many segments of the ADR industry—even when compared to the overall legal profession. For example, the American Arbitration Association has reported that in business disputes last year, 22 percent of those selected from its roster of nearly 7,000 neutrals were either a woman or a minority.
Statistics for the construction industry are imperfect. However, a 2014 study by the American Bar Association’s Section of Dispute Resolution found 86 percent of individuals who responded that they had handled a construction dispute as either a mediator or an arbitrator were men. The only practice areas with a larger gender gap were intellectual property and insurance.
Lawyers and neutrals interviewed by the Daily Business Review acknowledged it’s a heavily male-dominated field and several said that women encounter skepticism, if not actual bias, when they try to break in.
“I could see where maybe their initial prejudice would lead participants to favor male mediators, but I don’t think it’s valid,” said David Steinfeld of Palm Beach Gardens, a board-certified specialist in business litigation. “The legal process is far different from the construction process. You really want a mediator who is akin to a judge. The client might say, ‘This lady doesn’t know about stucco or flooring,’ but guess what? Neither does the judge or the jury. They have to be educated by the experts.”
Newly retired Miami-Dade Circuit Judge Gill Freeman said she got the message in her first few days as a JAMS neutral that construction would be a particularly difficult field for generating business.
Freeman, the first judge to preside over the circuit’s complex business division, was at a meeting with attorneys as part of the transition into her new role when she heard this comment: Clients in the construction sector tend to veer away from female neutrals based on an assumption that women don’t understand the industry.
“I don’t know that lawyers shy away, but most likely the clients do,” Freeman said.
“The lawyers who practice in that area are familiar with me, and that might outweigh the gender-bias issue,” Freeman said.
ADDING VALUE
Analysts say neutrals handling construction-related suits face a common challenge, working in a sector dependent on building booms to fuel developer disputes, personal injury cases on job sites, construction defect claims and litigation over derailed real estate deals. About four years past the peak of the current real estate cycle, they now face heightened competition for dwindling caseloads.
That makes skill and experience the key factors in selecting a neutral, according to several lawyers in the field.
Atlass said her expertise is drawn from a 24-year career as a litigator in firms with large real estate practices, her work as a transactional lawyer writing contracts and doing deals, a stint as an adjunct professor of construction law at Palm Beach State College, a role as general counsel to a family-owned door and hardware distributor, and a background representing developers and lenders.
“From the moment I walk through the door I can add value to the process, without much education from the parties,” she said.
Attorneys say the most successful construction neutrals understand the nuances of contractual disputes, insurance regulation and building defect claims.
“It’s a unique and niche area,” said Becker & Poliakoff shareholder William Cea, a board-certified construction attorney and certified circuit court mediator. “Construction typically has some unique elements. It lends itself to more specialty, not just in the practice area, but for mediators and arbitrators.”
Instead of two sparring parties, construction disputes sometimes bring dozens of litigants, including developers, multiple subcontractors and insurance adjusters to the negotiating table for alternative dispute resolution.
“Having a mediator who knows how to handle multiple parties is just one aspect of ADR,” Cea said.
‘NO FAVORITISM’
Data from the Florida Supreme Court suggest traditional gender roles play a role in whether a field is dominated by neutrals who are men or women. Women dominate family court, for instance, outnumbering their male counterparts by more than 60 percent, and more than 2:1 among those certified to handle dependency cases.
But in high-stakes civil litigation, 2,169 of the 3,309 certified circuit-court mediators—65 percent—are male. That’s a smidge more representative than the state court bench, which is 69 percent male, according to a 2016 report from the American Constitution Society. The state’s federal district court bench is 58 percent male.
Stanley Zamor, president of The Florida Academy of Professional Mediators Inc., said neutrals shouldn’t be overlooked in the conversation about diversity.
“Everyone is so focused on diversity on the bench, they’ve lost sight of diversity among mediators,” said Stanley Zamor, president of The Florida Academy of Professional Mediators Inc. “There’s a lot of cronyism,” Zamor said, and most attorneys select “mediators who will push their clients’ agenda.”
Bruce Alexander, a top South Florida neutral, disagrees.
“Construction mediators are for the most part selected based upon their substantive knowledge, personality fit, temperament and empirical data,” Alexander, of Ciklin Lubitz & O’Connell in West Palm Beach, said.
Alexander built a successful practice handling alternative dispute resolution, especially mediation, for construction disputes. His work centers on multiparty construction-defect litigation, insurance disputes and related claims that generally bring 20 to 80 people to mediation.
“I have not observed instances where there may be even an impression of favoritism where it comes to the selection of construction mediators,” he said. “I strongly believe that we have fantastic construction mediators in Florida, who are regularly sought out without any apparent preconception or favoritism based upon the mediators’ gender, race or creed.”