This post was initially titled "Boiling a Frog." But, I keep hearing Horace Middlemier in my head saying "your titles don't reflect the topic." Well, maybe, maybe not. The change was for you Middlemier.*
Have you ever boiled a frog? The question is odd but perhaps illustrative. There is an old parable about gradual change. The story goes that if you throw a frog into a pan of boiling water, it will jump out, and your dinner will be delayed (eating frogs? - just bear with it).
But if you put the frog in a pan of cool water, it will be content. Then, you slowly increase the heat until it boils. The gradual change is less noticeable and less shocking. Thus, the chances of reaction are diminished.
The thought has been discussed here before. The experience is similar to erosion. We seldom see the course of a river or shore change in our lifetime, absent some cataclysmic event. More readily, we see change occur over time as a stream cuts a different course through years of erosion and accretion (the opposite of erosion), see Michael Made Me (October 2018) and Did You Ever Get Old (January 2025).
Make no mistake, the results of slow change can be as dramatic as cataclysmic change. The point is not in the extent. The point is in our ability to readily perceive the change as it occurs.
I have heard through the grapevine that there are Florida workers' compensation attorneys who have never attended an in-person mediation. Not "live," as that word is the opposite of "dead." There are no "dead" or "live" mediations or trials; there are only "in-person" and "virtual." This seems axiomatic, but time and again we hear arguments for "live" proceedings, whether mediation or trial.
I made this statement recently in a group at the Forum, and was interrupted by Horace Middlemier, Esq. who expressed that if you've never been to a "dead mediation, you never mediated with _______." The joke got some laughs at someone's expense. But, it was nonetheless a joke. There are no "dead" mediations.
That said, let's acknowledge that mediation began in Florida workers' compensation in the late 1980s. It evolved from a purely voluntary process to a state-provided/funded process in the early 1990s. The mandate for mediation came in 1994. And we never looked back.
The Florida OJCC began using virtual hearings, which we named after the electronics used - Videotelconference or VTC hearings in the early 21st century. And those were an option that brought benefit and efficiency to the entire workers' compensation community.
These each illustrate erosion and accretion in their natural progression. They changed the course of the Florida workers' compensation river. Claims changed, processes changed, mediation came, evolved, and trials adapted.
Ask any of the trial gurus, like Christopher Smith, Mark Touby, Rogers Turner, Tracey Hyde (examples only), and they will tell you. In short, the world of workers' compensation has changed slowly, evolutionarily, before our eyes. We were just too busy to see it.
Then came the Great Pandemic in 2020, and the world changed. It was a cataclysmic event. The world changed instantly, dramatically, necessarily, reactively.
The permissive telephonic attendance at mediation became mandatory. In-person anything became exceptional. There was a necessity, and the old saw holds: "necessity is the mother of invention."
We evolved to presumptively Zoom video mediation. We saw many trials shift to Zoom, though that has reportedly tempered somewhat. And today we have young lawyers who joined this practice and community after 2020, who have never known anything different. They missed the cataclysm. What we old folks saw as a huge change appears perfectly normal to them.
Do you remember when:
- Judges took years to make a decision after final hearing?
- Judges did not write orders, but sent letters telling lawyers to write orders?
- Mediations, despite being mandated, were scheduled only after the parties asked?
- Mediators and judges ignored the legislature's deadlines, and the appellate court acquiesced?
- Getting permission to attend an event by telephone was exceptional?
- Hours and days were spent at the district office waiting your turn?
- Driving 3 or 4 hours round-trip for a 15-minute hearing or a one-hour doctor deposition was just another day at work?
- Parking was a thing?
A great many of us remember the "good old days." They were marked by those recollections above and some other points that were even more annoying.
And today we have young lawyers who joined this practice and community after 2020, who have never known these challenges. They expect a high-quality, detailed order within 30 days of trial, and in the vast majority of instances, they get it. They expect to be able to multitask in some instances and to minimize wasted time in most. They were born into technology, bask in convenience, and model efficiency.
That is all worthy of consideration. But respect? Having never known the challenges of yesterday, they are immune to realizations of just how efficient, effective, and professional the OJCC is today. They don't remember the paper, the files, the postage, and the delays.
Not to sound too much like a geezer in a rocker - you just don't know how good you have it.
That said, we would like people to behave in virtual settings with professionalism, dignity, aplomb, and respect. What we see too often is nonchalance, indifference, and lukewarmness. We see poor attitude, motivation, dress, and decorum. We see a lack of respect for clients, mediators, judges, and each other.
As judges, we need to demand more. That might mean a sanction, or it might mean a postponement of your event because you chose not to appear in professional attire, treat your client and opponent(s) with dignity and respect, and participate in the process in good faith. Judges need to demand more, tolerate less, and promote professionalism.
The Great Pandemic's cataclysmic advancement is being overshadowed by the Great Indifference's erosion. Having no grounding in the formality and dignity of yesteryear, there are those today whose informality and casualness are an affront to their own clients, this process, and the community.
It is imperative to know that none of us knows everything (well, most of us at least). And it is probable that what we do not know, "everything," far exceeds what we do (we "don't know what we don't know" - the Dunning-Krueger Effect). This is a generality, but it also applies to your present dispute. The great challenge, however, is that there is much "you don't know you don't know." And that vast chasm may include much that can hurt you and worse.
That you see the way the world is will help you navigate it. If you take the time to explore the way the world has been, you can better grasp how it got to be as it is. If you study, listen to the old folks, and pay attention, you can be more than you think, and perhaps more than we old folks ever were. Or, you can focus on your present, only on the now, and ignore the professionalism and community that is eroding before my very (sad) eyes.
Some simple advice:
- Be on time
- Dress appropriately, professionally, clean, and neat
- Be prepared
- Conference with your client in advance
- Turn on your camera - leave your camera on
- Stick to the task at hand, only that task (be in the moment)
- Treat the others involved with dignity and respect (always)
*Horace Middlemier is not a real person. He is an affectation and literary device used here to refer to both "any person" and "every person." Any similarity to any real person, living or dead, is pure coincidence.
