In this installment of “Meet Our Mediators," we have the pleasure of presenting Ricardo Cata, who, before joining Upchurch Watson White & Max, served as a trial lawyer in South Florida for 38 years. Ricardo mediates a variety of personal injury and commercial civil litigation matters including cross border disputes that are in litigation or international arbitration. Spending a few minutes with Ricardo, you will see that he is genuine. Spending even more time with him will reveal a thread that runs through both his personal and professional life – an aptitude for staying focused on the goal even when it is difficult to persevere. And this serves him well and by extension those for whom he mediates. You see, Ricardo has the experience of being a long distance runner and he is acutely aware of the parallels between running long distances and mediation. Ricardo brings the long distance runner’s focus, discipline, persistence, and knowledge of the importance of setting a pace to mediation. But, more than that, he brings the experience of leaving his home country of Cuba with his brother when they were both only teenagers. They left all that was familiar, and their family faced their discomfort and were forced to focus on the goal of making a new life and future. The lessons of that experience have contributed to Ricardo’s successes and inform his skills as a mediator. Please read on to learn more about Ricardo, and mark your calendar to attend his program on “Escalation Clauses in Cross Border Dispute Resolution: Why Your Client Wants Mediation” at the 2017 Annual Florida Bar Convention in Boca Raton on June 22, 2017.
- When did you first think of becoming a mediator?
It was a slow process for me. I was very involved in my law practice and enjoyed it, as well as the challenges and opportunities it brought me. There was also a significant amount of international travel to Central and South America and the Caribbean and meetings with local attorneys and other professionals in the region with which I interacted as their U.S. attorney or as monitoring or supervising counsel. I published several articles in Spanish in local legal and insurance publications relating to U.S. liability risks in the areas of product liability, hotel and resort liability, D&O liability, and certain specific areas of insurance coverage, such as claims-made policies, which were fairly new in the region at the time. A significant amount of my client communications from the mid-1990s until my retirement from practice in 2013, was conducted in Spanish. However, during the 10 years or so prior to my retirement, litigation and trial practice was becoming much more contentious and abrasive than it had been before, especially with the advent of electronic discovery, and the correspondent increase in motions for sanctions and to strike pleadings, etc. For me, the practice of law was increasingly becoming less "fun" and much more combative, where professional courtesies extended were far less than I had been accustomed to in the past. It was not unusual for lawyers to schedule hearings on important or dispositive motions during the time of scheduled vacations (and refuse to re-schedule), and for judges to schedule trials cases during the holiday season. So, after thinking about it for a long time and speaking to my family, I decided in 2013 to start the process of moving toward becoming a certified mediator. I did so with the full backing of my former firm, and my partners were supportive of my decision. I took the mediator certification course in January 2013, did all my observations (more than the 7 required) by end of February and was certified by mid-March 2013. I took some additional practical courses for “new” mediators from the American Arbitration Association and from the ABA. In August 2013 I approached Rodney Max, whom I had used as a mediator in several of my cases and for whom I had much respect, and inquired about becoming a panel member with the UWWM firm as of January 1, 2014. That meeting led to a follow-up meeting with John Upchurch, and the rest is history. I became a full-time mediator in 2014, and have never looked back or regretted that decision. I love mediating and it has been very satisfying to me.
- What did you do before becoming a mediator?
During the last 26 years of my legal practice, I was with the national firm of Wilson Elser in their Miami office. I started there as a senior associate, and soon became a non-equity partner, then an equity partner, and during my last 6 years there, the office’s Managing Partner. While at Wilson Elser, my practice varied and always included more than one area of practice. I did product liability defense (consumer and industrial products), hotel and resorts liability defense (inbound from Mexico, Central America and the Caribbean), chiropractic malpractice, general aviation accident suits, defended damage claims in the 1995 AA crash in Cali, Colombia, spending two weeks there taking damages depositions; insurance coverage analysis and issuing reservation of rights letters; D&O litigation; ADA non-compliance suits; overtime and wage and hour suits; and general liability suits. A significant portion of my practice involved serving as monitoring and supervising counsel for local attorneys in Mexico, Central and South America and the Caribbean on outbound suits filed locally in the various jurisdictions against clients of U.S.-based firms. As I already noted, I also made many presentations in Spanish to domestic and multinational insurance and reinsurance companies with insured risks in the U.S. related to various areas of U.S. liability, the U.S. discovery process, electronic discovery issues, productions of documents, and other related issues. I published in Spanish in these same areas in various legal and insurance journals in the region. This was important since most of those jurisdictions operate under a "civil code" legal system and did not have jury trials, or very limited discovery, or the American range of money judgments at trials. Prior to Wilson Elser, I had my own practice for about 5 years doing mostly commercial litigation and some residential real estate closings. Before that, I was in-house litigation counsel at Burger King Corporation doing franchise litigation, which usually also had aspects of trademark infringement and commercial real estate issues. Before that, I was the first Latin associate at the now-defunct Fort Lauderdale firm of Fleming, O’Bryan & Fleming, doing mostly medical and hospital malpractice defense and product liability, and some immigration work during the Cuban boat lift of 1980.
- What is your favorite part of being a mediator?
I enjoy all aspects of mediation, particularly that my role at mediations is one of assisting parties and their counsel in taking control of the resolution of their disputes (some of which are very emotional and have been going on for two to four years), and bringing them to an amicable resolution and thereby bringing closure and healing to the situation. Resolutions allow the parties to move on with their lives and business and avoid the harsh and expensive reality of a civil trial in federal or state court. It is a good and rewarding feeling for me to be an active part of that process, and to make a concrete contribution to the non-adjudicatory process of dispute resolution.
- What do you wish people did more often in mediation?
Primarily in two areas: First, I wish attorneys would more often submit confidential mediation summaries with attached relevant documents, especially in commercial or more complex cases. This is very helpful to me as the mediator to assist me in understanding the issues and key areas of contention before the mediation session starts. It also saves time at the mediation insofar as I am familiar with the key issues as to liability and damages, and it also assists me in developing ideas and strategies as the mediator before the session begins. Second, I have seen a trend, especially in cases involving personal injury claims, where the plaintiff’s attorney will present an initial demand that is often twice as large as the last previous demand he/she conveyed to opposing counsel, often just weeks before the mediation, and where none of the facts or damages or liability issues have changed since the pre-mediation demand had been presented, and no additional costs had been incurred. This larger demand, presented in front of the plaintiff(s), often creates an unrealistic expectation and some degree of “anchoring” on the part of the plaintiff(s) as to the ultimate outcome of the mediation. It also often creates significant frustration and anger on the part of defense counsel and of the claims adjuster present at the mediation, and it often requires significant time and negotiations to bring the mediation back to the point where the demand was just days or weeks prior to the mediation session. In my opinion, this tactic more often than not causes significant delays and frustration, and at times risk of impasse, in the process of the mediation, instead of advancing the process forward toward a resolution.
- What are the traits of the greatest lawyers you have known?
The lawyers who are obviously very well-prepared at the mediation, who know their case “inside out," who in mediations conducted shortly before the trial period commences, have done all the needed discovery, have all the relevant experts lined-up, and have deposed all of the relevant witnesses and experts on the other side, and who are ready and willing to negotiate a reasonable settlement, or to try the case if they have to. In the case of early mediations, these same principles apply, but obviously relying more on knowing their cases from the point of view of reviewing relevant documents, reports, investigation, and meetings and interviews with their clients and non-parties. This all becomes very obvious at the mediation to me as the mediator, and in my opinion (both as a mediator and as a former trial lawyer), it places the lawyer who is very well prepared and not “winging it” in a much more advantageous position at the mediation to achieve a settlement favorable to his/her client. The other traits of a great lawyer, in my opinion, is that of being firm but professional and courteous to opposing counsel, to the parties and to the mediator. In my opinion, such a conduct is not a sign of weakness, but of strength and confidence.