The downtown Miami office of the Florida Mediation Group hums with a constant flow of people in various stages of nervous tension. Briefcase-toting lawyers in suits, anxious looking people in work clothes and caps, uniformed police officers with bulging files under their arms. Several people lean across the information desk, others wait uneasily in leather chairs done in a tasteful shade of dark green that matches the carpet. There are real plants in large pots, indirect lighting from brass floor lamps, anantique-style clock with swinging pendulum.

All this contrived homeyness is designed to calm the nerves of those who have come here to seek resolution of the deep troubles in their lives. Sometimes nothing can soothe them; not spring water from the cooler, not free hot coffee, not the mini Tootsie Rolls heaped in a glass bowl. One woman, huddled in an upholstered wingchair, weeps nosily while her attorney tries to comfort her.

The receptionist leans over her counter and calls to a group of people.

"Room three," she gestures, and they move down the hallway to begin their personal foray into mediation.

A polished conference table nearly fills the small room, but the floor to ceiling windows provide light and the sensation of airiness. Faint sounds-of traffic rise from Flagler Street, 10 stories below. Directly across the street is the garish metal facade of a 1960s office building; to the west is the graceful granite tower of the Dade County Courthouse.

The mediator on this case is a former circuit court judge, S.Peter Capua. He enters the room chatting amiably with the opposing attorneys and their clients, obviously trying to put them at ease.He takes a seat at the head of the table; an attorney and adjuster from a large insurance agency sit on one side, a humble-looking man wearing work clothes and a baseball cap sits with his young attorney facing them.

"Just make yourselves comfortable," Capua says. "This is aninformal procedure." He asks everyone to introduce themselves.

"Now, I know none of you personally," he says, "but I have four children, all of whom are attorneys. Do any of you know them?"

Heads shake.

"So that you'll know my background, I'll tell you that I've been an attorney for 31 years and was a judge for twelve years,most recently on the Circuit Court. And I know that across the street there," he nods toward the window, "each judge has a certain number of cases to dispose of. The demands on our legal system are such that we must try to settle as many cases as possible. You must be here to make a good faith effort to settle." He looks at each person in turn. "Do I have a promise that you all will do this?"

Heads nod.

"I'm not here as a judge," Capua explains. "We don't follow the rules of evidence or of civil procedure. You can ask questions, you can vent, you can say whatever you want. I'm not a jury and I'm not an advocate for either side. I'm totally impartial. I won't reveal anything you tell me privately which you don't want me to reveal. Our purpose is to arrive at a settlement. If you're not really interested in settling the case, then it's a wasted effort. Okay?"

"Then let's begin. May I see the file?" It is Capua's first look at anything having to do with the case.

It involves a vehicle accident that occurred back in 1990 and has been dragging its ponderous way through the legal system ever since, and the participants dissect it in detail. It seems that Mr. Alvarez' truck ran into a car, causing damage to the car and injuring the driver. Alvarez insisted the accident was not his fault; that he was forced out of his lane by another car. The police did not charge him, and the driver of the car (who is not present today) had his bills paid by his own insurance carrier.Now the insurance company wants Alvarez to reimburse their expenses. Ordinarily, this would be an issue between two insurance carriers .

But Mr. Alvarez has no insurance.

His attorney paints a picture of the powerful and wealthy insurance company picking on a poor, independent truck driver. "Mr. Alvarez is judgement proof," the attorney states. "He has no insurance, he owns no property. I'm retained as his attorney probono. There's no point in going after him. He has no assets at all."

"I think at this juncture," Capua says, "I'd like to caucus with the insurance folks." He rises and leads them across the hall into a room furnished only with chairs, the windowless walls relieved with colorful prints of Miami streets stretching away beneath flowering poincianas.

The attorney looks exasperated. "There's a lot of people out there like him," he says, "driving around without insurance. And that's why your premiums are so high, and that's why mine are so high."

"We have a responsibility to our insured," the adjuster adds."If we didn't go after these people, nobody would bother to get insurance."

Capua looks thoughtful. "Are you willing to lower your demand? Maybe he could pay something on a monthly basis."

"Sure," says the attorney. "Make us an offer."

Capua gets up. "OK," he says. "You hang out while I go backand see what they're willing to do."

In the mediation room, Capua asks for an offer of some restitution. Alvarez' attorney shakes his head.

"Look," the former judge says, "I have to go back in there and tell them you're willing to accept your responsibility to society.You know, insurance is mandatory now, because everyone has to bear the burden of living in this world."

"But Mr. Alvarez has no responsibility for this accident. He doesn't even know how it occurred. He's high on top of this big 18 wheeler and he doesn't know what happened."

Capua turns to Alvarez. "Incidentally, was this your truck?"

The attorney answers for him. "It was. He lost the truck."

"I hope you're aware," Capua says, "that he's in danger of losing his license. Think of how it will appear to a jury; like he just wasn't paying attention. The court can demand that some payment be made in the future, until such time as he has assets.Or, he can pay something each month, and be sure of keeping his driver's license."

He looks at the driver. "Interstate drivers do pretty well,don't they? I think you get about 65% of the gross load."

"He was driving local," the attorney says.

"Well, why don't you talk to your client?" Capua says. "I'll wait in the hall.

Within minutes the attorney comes out. "He says he's not at fault and doesn't want to be hooked into these guys forever. He wants to go to trial."

"He won't even offer, say, a thousand dollars?"

"Nope."

Then, in an unusual move, Capua asks, "Would you mind if Italked to your client myself?"

"Be my guest."

Capua sits close to Alvarez and leans an elbow on the table.The driver sits back, stony-faced, his arms crossed over his chest.

"Your attorney is doing a very good job for you," he says."He's an awfully nice guy, to take your case for nothing."

Alvarez shrugs.

"Do you speak English?"

He nods.

"Look across the street," Capua says. "I spent seven years in that courthouse, and I know that juries come out with pretty much the right decisions. Your case is not fool proof. In my estimation, you have maybe a 50% shot, at most."

For the first time, Alvarez speaks. "If I had turned the wheel and hit that car with 15,000 pounds, I would have smashed that car."

"But you were diving without insurance," Capua persists. "Now you say you have no money. Don't you realize you could lose your license and your livelihood?"

Alvarez shrugs again. "So I'll lose my license, so I won't drive. The government will have to support me, and my wife, and my daughter."

"Oh, I'm not so sure about that, Mr. Alvarez. The government doesn't have the money to do that."

Alvarez is adamant. "I'm not going to admit I'm wrong and pay the guy that hit me!"

Capua spreads his hands. "I can't go back in there empty handed." Alvarez shrugs again. In the hall, Capua confronts the two attorneys.

"I'm going to have to declare an impasse," he says. "He wants to go to trial."

"Sure, he does," the insurance man says bitterly. "If I had no money and an attorney who was working for free, I'd want to go to trial, too." He shakes his head with disgust.

"You know, it pays to be poor."

Lawyers are trained to fight: everyone knows this. But the FLORIDA MEDIATION GROUP, one of hundreds of such firms throughout the country, is in the business of getting people to settle their disputes before they get to court, thus robbing all involved of the thrill of courtroom drama. The lawyers who work here were taughtin the same law schools as their combative colleagues, where they learned to argue aggressively and without compromise. They were trained to be a hired gun, a "mercenary warrior," as San Francisco lawyer Harrison Sheppard calls them, for their clients.

"Law schools are not schools for resolving conflict harmoniously," Sheppard says. "They are schools to help promote profitable conflict. Most law schools [don't] require that students learn how to negotiate...what clients really need is the help of someone who can produce an outcome they can live with, even after anger has subsided, by resolving conflicts harmoniously."

Indeed, the great American lawyer, Elihu Root, said that "half the practice of a decent lawyer consists in telling would-be clients that they are damned fools and should stop."

And this is where mediation comes in. Mediation is a form of alternative dispute resolution, which seeks to solve problems with skillful negotiation instead of costly, stressful litigation. It differs from arbitration in being non-binding; participants are allowed to fail, and the neutral mediator has no authority. If an agreement is not reached, the parties can still resort to the courts. It is a process that is becoming, almost by necessity, a national trend. Our courts cannot keep pace with the sheer number of cases filed, and mediation offers an alternative to the traditional jury trial, an escape valve for a dangerously overburdened system. Many experts believe that mediation is the best hope for unclogging our civil and family courts and disentangling the legal knots of this litigious society.

I first heard of mediation four years ago, several months after my physician husband died suddenly, but it was an experience I remember with some dismay. Martin had always assured me that if anything happened to him, the mutual insurance arrangement he had made with his partner would provide for me and our children.

But within hours of Martin's death, I later learned, the partner and his wife were visiting their lawyer, looking for a way to maintain control of the medical practice without the agreed upon buy-out. The worst crisis of my life was soon compounded as I found myself involved in my first law suit.

The next months became a blur of gathering evidence; a bad dream of documents, depositions, and fighting to keep my emotions on an even keel. At a pre-trial hearing, the judge asked whether we had gone to mediation. No, my attorney answered, the partnerand his wife had refused. The judge ordered them to try.

And so, the night before the trial that would decide my family's future, I sat beside my attorney in a small office, facing the man who was to serve as a neutral Solomon in the dispute. The x-partner and his wife didn't attend, sending word through their lawyer that they felt there was nothing to discuss.

"Why don't you simply split your half of the practice down themiddle?" the mediator suggested.

I am not a gambler. Although I was certain I had legal as well as moral right on my side, I felt I was coming close to emotional exhaustion. I was worried that even if the decision of the court went to my favor, the partner and his wife would appeal.And they were the ones with the money.

Without further discussion, I agreed. We all waited while the partner's lawyer called his clients on the phone and, over the wife's adamant and audible objections, somehow convinced them to accede. Within an hour, it was over.

The experience left me puzzled and shaken and more than a little bitter. Was that the way mediation was supposed to happen? There had been no give and take, no first, tentative steps toward resolution, no process of negotiation. Anxious for an end to the ordeal, I had given up without a fight. Although the mediator, and probably the attorneys, considered the mediation a success, I was not so sure.

Mediation is based on the assumption that humans are a reasonable species who would sooner resolve their disputes than resort to the prolonged haggling of expensive courtroom confrontations. This assumption is not always correct. But it is the only time during litigation when all the parties are present together; the clients (they are not called plaintiff and defendant at this genial stage), attorneys, and other interests such as insurance representatives. In this most democratic of legal procedures, no one is called "your honor," and everyone is allowed an equal voice.

For years, civil cases have been settled, as they say, on the courthouse steps. Hours, or even minutes before a case is to go to trial, attorneys have put their heads together and agreed on some sort of compromise that saves the expense and stress of a jury trial, which is always a game of chance.

Then, in the 1980s, some courts began to mandate mediation before civil trials. Judges would appoint a mediator, and attorneys were compelled to comply. Contrary to the predictions of many trial lawyers, it seemed to work.

Experienced defense litigating attorney Allene Nicholson established the Florida Mediation Group in l989 along with her partner Burt Lowlicht, and now has 25 trained and certified mediators in its Miami, Ft. Lauderdale and Tampa offices. (While mediators in family court need not be attorneys, and are often therapists or psychologists, civil cases must be heard by members of the bar.) Prospective mediators must attend a 40 hour course, observe a certain number of mediations, and "co-mediate" for on-the-job-training.

Nicholson, a friendly but firm and outspoken woman, remembers the days when mandated mediation was a new concept.

"Lawyers were dragged, kicking and screaming, into mediation.They were sure their case would never settle. Now, they know they must go to mediation, and their attitudes have changed. They've really come around, where once they insisted it was a waste of time and money." Even cases which fail to reach agreement during mediation are often settled before going to trial, Nicholson says,once the parties have had time to reflect on their poor chances before a jury.

What makes a good mediator? Nicholson doesn't hesitate.

"Patience," she states, "plus the ability to size up a situation quickly, to grasp the problem intellectually and react emotionally. Tempers can get hot pretty quickly in there. You needto be able to keep things under control and not make people madder." I was soon to see Nicholson's technique sorely tested.

Is it difficult to learn to mediate? "It takes 50 or 60 cases to learn how to mesh yourself to the process," Nicholson says."You have to remember that the goal isn't to win or lose, as it is when you're the attorney. The goal is to settle; to lead toward resolution. When I began mediating, my focus slowly changed; instead of evaluating who should win and who should lose, I concentrated on what I needed to do to move them toward settlement.You don't think like a juror, or a judge, or even a lawyer. You're really a new kind of animal."

A lawyer who doesn't want to win? A strange animal, indeed.

Waiting for his assigned case in the mediation office is former Judge Murray Meyerson, now a full-time mediator.

"You have to learn not to take sides," he says. " The trick is to stay neutral, and that's not always easy."

He illustrates with a story.

"You heard about the small-town Rabbi who was asked by the mayor to settle an argument? He listened to each man, then he turned to one of them and said, Goldberg, you're right. And then he turned the other way and said, Horowitz, you're also right. The mayor said, hold it, Rabbi. How can they both be right? The Rabbi stroked his beard for a while; then he nodded. You know, he said, you're right!"

Meyerson smiles. "That Rabbi," he says, "was one hell of a mediator."

Down the hall, Allene Nicholson is beginning a mediation of her own. On one side of the table sit Victor and Darlene Hardy,a robust young couple, together with their attorney. On the other side is attorney Al Burnlock, representing the insurance company of the man whom the Hardys claim hit their car and caused substantial injuries.

Nicholson, garbed in white blouse and a navy suit that would be conservative but for the thigh-high slit in the long skirt,calls a halt to the chatter.

"OK," she says, "let's start this off right, even though it's informal." She looks at each participant. "Keep an open mind and an open ear. You'll disagree with some things, but you get to decide the outcome; not me. Find something you can live with, so you can avoid going before a jury, which, let's face it, is six folks off the streets of Miami."

Bill Burch, the Hardy's attorney begins. "This is a pretty clear-cut situation," he says. "The Hardys were rear-ended in Homestead. There was $3,000 damage to their car. Darlene went to the hospital with a possible cervical fracture, and although that was ruled out, she has been under the care of four different doctors and had several MRIs, which showed a bulge of the disc between the fifth and sixth cervical vertebrae. She has $10,000 in medical bills."

He turns toward Victor. "Victor was driving when they were hit. He was sent to Dr. Herrick and three more doctors, and has bills of over $6,000. They're asking for payment of their bills, plus pain and suffering."

Now it is Al Burnlock's turn, and he is angry. " How much pain and how much suffering?" he demands. "Let's tell everybody."

Burch looks down at his notes. "We're asking for $120,000."

"And is that with or without the $16,000 in medicals?" Burnlock asks, sarcastically. "I doubt whether my client has been paying high insurance premiums all his life in the hopes of making rich people out of these two."

"Now, Al," Nicholson says, "let's save the dramatics. Just stick to the facts for now."

"Fine," says Burnlock. "Let's look at the facts. My client skids at night, on a wet road, at an intersection. This guy he hits has no proof of insurance. He has never kept a job more than four to eight weeks; he was fired from his last job. Mrs. Hardy owns a beauty shop and seems to be supporting her husband. They went to an attorney who is a big advertiser. He sent them to his good friend, Dr. Herrick, who we all know works on salary from the attorney. They build these claims and run up the bills. They have these guys on percentage. Dr. Herrick has one of the worst reputations in Florida. He got a 40% kick-back from the attorney. These people are in the business of creating cases, and that's exactly what happened here."

Burnlock pauses and begins drawing multicolored files out of his briefcase. "Here's all the proof you need. Here are their medical reports from reputable reputable doctors. None of them even mention all this terrible pain and horrible suffering." One after the other, Burnlock tosses the folders onto the table; the bright green, the lavender, the neon yellow.

Now Bill Burch, who has been listening without interruption, rises. "This mediation is over," he announces, quietly.

Nicholson looks startled. "What do you mean?"

Burch begins to collect his material. "We've been listening to this garbage for nearly an hour. If he's going to carry on like this for another hour, we're wasting our time."

Burnlock slams his folders on the table. "Garbage? I'll tell you what's garbage. It's your whole case."

Both attorneys are on their feet now. Victor and Darlene turntheir heads from one competitor to the other, their eyes wide.

"Save it for the jury, Burnlock," Burch says. "It's obvious you have no intention of going through mediation. You just want to put on one of your shows."

Nicholson rises and hold out both her hands. "Guys, guys, hold it. Come on, sit down."

"There's no point in sitting down if I have to listen to this crap," Burch insists.

Nicholson turns to Burnlock. "He has a point, Al," she says."Can you finish up with your presentation so we can get into some discussion?"

"Absolutely not," Burnlock fairly shouts. "He doesn't want to listen because he knows it's the truth."

The Hardys watch, open-mouthed.

"Come on out of the room, guys," Nicholson says. "I want to talk to both of you."

Perhaps the mediator reminds the attorneys of the presence of a journalist, but when they return, they have regained their composure. Both men take their places at the table and continue as though nothing disruptive had occurred.

"Now," Nicholson says to the young couple, "this is a simple matter. We look at how much money you're asking for at trial and how much you would accept to settle. The good and the bad news is that you folks look perfectly healthy. You'll have to convince the jury that you have pain they can't see. They'll know you're there to get money."

Leaving Burch and the Hardys, she takes Burnlock into the caucus room for a private conference. He agrees to offer them $10,000 to settle the case.

"They're not going to go for that without some hard pressure,"Nicholson says. "During all that confusion, did I hear your say surveillance?"

Burnlock nods. "You sure did! She's in the beauty shop doing this and lifting that and running around; no evidence of neck pain at all."

"Let me tell them."

"No way," says Burnlock. "That's something for a jury to hear."

"But meanwhile, they're going to stick with $120,000."

"And they might get six idiots in there and they might get it" Burnlock says. "This is a con job, plain and simple."

Leaving Burnlock outside, Nicholson returns to the mediation room. The Hardys refuse to lower their demand.

"Look," she says. "You have to wait all this time until trial. You have to sit through the evidence, and call all these doctors in. Then one minute before the jury has a verdict...:" she knocks three times on the table, "one minute before the knock on the door, you're facing a risk. They could say seventeen thousand,or they could say more, or they could say nothing. Now, you want 120,000 and they offered you ten. But you have to try to stay in the game."

Burch looks at his clients. "You're thinking of getting100,000, and you're just not going to get it. I've got a feeling we'll get the medicals at trial, but as for the rest..." His voice trails off.

Nicholson keeps up the pressure. "The stats are 90% againstyou. You're coming to the jury with something they can't see.They'll take everything you say with a grain of salt. If you're one bit inconsistent...and forgive me, but even Jesus Christ can't be 100% consistent...they'll hear that you told one doctor something you didn't tell another. And they'll hear that when you were injured, you went not to a doctor, but to a lawyer, and the lawyer sent you to the doctor."

Burch asks his clients, "Will you guys take fifteen thousand each, in your pockets today? Because you're gambling with losing what you could settle for, plus having to pay the doctor bills, and that's not going to go away."

Victor says nothing, but Darlene speaks defiantly.

"I don't see what we have to lose," she states. "They can't get anything out of us."

"But you'll lose the money you could have walked out of here with today," Burch insists.

Darlene shakes her head.

"Tell him ninety," Burch says.

"I'll see if Burnlock will make you a better offer,"Nicholson says.

In the caucus room, she tells Burnlock, " Bill's got some difficult clients. They're down to ninety."

Burnlock snorts.

"Let's settle this now," Nicholson implores. "Let's go up to thirty now."

"Twenty," says Burnlock.

Burch has convinced the Hardys to lower to $55,000.

"They didn't move enough," Burnlock says.

"Twenty-five?" Nicholson suggests.

"I'm not budging one cent more," Burnlock says.

In the mediation room, Nicholson tries again. "When you're in private," she tells the Hardys, "your attorney will tell you it's just not worth the risk. You've got real money on the table."

She returns to Burnlock. "Oh, we're at the tough spot," she says. "They just won't do it for less than forty."

Burnlock scowls. "That means reward them for building up a phony case. I've never settled a case that Herrick is in on. We should get hold of that attorney who sends these people to Herrickand string him up. I'm just throwing money away here."

"Al, let me tell them about surveillance."

"No."

"But I'm sure it will shake them up, and we can all get out of here."

Grudgingly, Burnlock agrees.

"There's something you should know, Darlene, " Nicholson says back in the mediation room. "The insurance company was so sure you weren't badly injured, they had pictures taken of you at work. They show you leaning over your customers, reaching overhead, moving around without any sign of pain." Darlene is unfazed. "So what," she says. "I've always admitted I work. I have no choice." "Why don't you say you'll take $30,000?" "Forty," says Darlene. "Forget it," says Burnlock in the caucus room. "We've been here three hours. I'm ready to walk." "Give them thirty-five, Al, and we're out of here." Burnlock rises and packs his briefcase. "Thirty," he says, "and they pay for mediation." At last, the Hardys accept. Their accident has turned out to be a lucky one; they walk away with more money than they might ever have seen in their lives.

Burt Lowlicht, the non-lawyer administrator and co-owner of the Florida Mediation Group, points out that mediation is a concept as old as the Bible, given new garb to suit modern law.

"It's a process that helps both sides find a solution which both are equally uncomfortable with," he says with smiling irony. "Perfectly reasonable people often have very different perceptions.The mediator must lead them through a sophisticated process and has to be highly trained in some very difficult skills. You have to ask hard questions without antagonizing. A Catholic mediator told me it's like being priest hearing both sides of a confession."

Are we witnessing the end of the attorney as gladiator?

It isn't likely. "Some cases really should go to trial,"observes Alleen Nicholson. "Those in which the parties are completely antagonistic need the court to resolve the battle. But I think we're on the verge of seeing the court as the alternative to mediation, rather than the other way around."

Attorney Michael Samuels served for five years in the Mediation/Arbitration Division of the 11th Judicial Circuit Court,a position which has since been discontinued. "When the division started up in 1989, we were the new kid on the block. Bureaucrats are always terrified of change; our biggest obstacle was winning over the long-time legal professionals." While lauding Dade County Clerk of the Court Harvey Ruvin as a progressive exception, he feels the old power structure is allowing mediation to progress only at a snail's pace.

"They don't seem to realize how good this is for the whole legal system," he says. "Civil and family mediation will even help the criminal courts by freeing up judges to hear those cases."

Samuels says he fell in love with mediation after 17 years of practicing law. "There was too much fighting going on; the clients' financial and emotional suffering were so great."

A psychologist friend told him about the then-new field of family mediation. Samuels took the course and was hooked, and went on to learn civil mediation, which he now does full-time at Florida Mediation Group. He cites a case which quickly settled after seven years of litigation and has a sheaf of letters from lawyers.

"Never in my wildest dreams did I believe this case could have been resolved before trial," one writes. "In mediation, it was resolved in a matter of minutes."

More and more attorneys are seeing the light and becoming converts, Samuels believes. "At the beginning, there was really heavy opposition, but lawyers wouldn't admit it was because they were afraid their legal fees would be less. Now mediation at least has a foothold, but it's being adopted way too slowly."

Why the reluctance? "When you conclude a mediation," one lawyer says, " you have equal feelings of accomplishment and unhappiness. You might resolve the dispute more easily, with less time and less expense. But nobody really wins."

He lowers his voice. "And it's not nearly as much fun."

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