This article originally appeared in the Daily Business Review on September 20, 2022, and was written by Jamie A. Cole and Candice Balmori.
Given the frequent interactions between government and business, disputes often arise between regulatory bodies and private parties. The landscape of a dispute with local government, however, can look vastly different from the traditional terrain of purely private litigation. The nuanced aspects of disputes that lie at the intersection of government and business, and the specific procedural laws that apply to local governments, require assistance from mediators with specific local government experience to assist parties seeking to resolve disputes through mediation.
The Unique Government-Business Dispute Landscape
Put simply, there are legal and institutional variations that differentiate disputes with government from traditional disputes between private entities. These differences can often become obstacles to resolving even the most seemingly straightforward disagreements between government and business.
Resource asymmetry can often influence the trajectory of dispute resolution. Private parties may be more cost-sensitive in their approach to a dispute, whereas government may be willing to litigate matters at greater expense to protect the public good. This includes a greater willingness to pursue legal theories or challenges that may set important precedent in other matters, which, for an individual litigant, may be economically irrational to pursue.
Moreover, government lawyers are usually specialists in their area of practice and well-positioned to levy and respond to legal challenges in the public sphere, whereas counsel for private litigants sometimes get lost in the mire of unfamiliar statutes and ordinances. For instance, understanding the applicability of open government laws at the inception of a dispute can greatly impact the time spent seeking information from government entities by way of traditional discovery requests later on. Similarly, familiarity with unique defenses available to governments that often do not arise between private litigants, such as sovereign immunity and statutory damages caps, can be key. By the same token, there are distinct statutory regimes that enable certain causes of action, like those brought pursuant to the Bert Harris Act, which are particular to government alone.
To complicate matters further, when a dispute involves government, the public is often an initially overlooked third-party that must nonetheless be accounted for in resolution. Such considerations of the public interest are not typically features of private litigation. Thus, interested stakeholders are often not present at a mediation, but will certainly express their positions at any public meeting ultimately held to approve a settlement. Relatedly, because media consistently tracks government action, public sensitivities are often a paramount consideration in dispute resolution, and public opinion can create a potential obstacle to resolution for local governments.
Finally, in disputes between private parties and governments, there exist unique sensitivities by private actors who are repeat players in the government-business arena and who wish to preserve their relationships and goodwill beyond resolution of a particular dispute for the sake of future beneficial transactions with government.
A Mediator With Experience in Local Government Law as a Guide to Facilitate Mediation
Mediating local government and business disputes can be an invaluable resource to assist the parties as they navigate through the obstacles that this unique landscape presents. The more the needs and limitations of each party are understood by the intermediary facilitating discussion between the two, the more effectively those discussions for resolution can yield progress.
In particular, a guide who can adeptly shepherd the parties procedurally through the sticky aspects of mediation with a government actor—such as understanding limitations on final settlement authority, Florida’s Sunshine Laws, and concepts of sovereign immunity—greatly improves the likelihood that a mutually agreeable resolution of a dispute can be reached.
Additionally, using mediation as a mechanism for settlement can provide a window for creative solutions that allow the parties to shift perspective from the adversarial zero-sum endeavor seen too often in litigation, to a partnership of negotiation for a mutually beneficial outcome more commonly brokered in government fora. This shift in outlook can lead to an improved relationship between the parties during a tense period of interaction. In this manner, the parties can preserve future transaction potential. In fact, the candid discussions and creative intervention of an honest and knowledgeable broker during mediation may allow the parties to conjure creative solutions and remedies not limited to simple dollar demands. In some instances, these discussions have even been shown to spawn policies that foster outcomes with positive outcomes to the public welfare the government serves. Finally, in most cases, mediation can maintain confidentiality. This can help to lessen the apprehension of public sensitivities to certain disputes and potential political ramifications, simplifying the path to dispute resolution.
Given the distinctive challenges that disputes with government present, a mediator with specific local government experience is an underrated and underutilized, but highly effective, guide on the path to dispute resolution.
Candice Balmori is an attorney at Weiss Serota Helfman Cole + Bierman’s Fort Lauderdale office and represents municipalities on a broad range of issues, including counseling on contracts, compliance with public records, sunshine and ethics laws.
Jamie Alan Cole is a partner and the managing director of the firm’s Fort Lauderdale office. He represents local officials and governments in matters that help improve their communities and preserve home rule power. Both attorneys are Supreme Court-certified mediators.
To read the original article in the Daily Business Review, click here.
