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The Amendments to Florida’s Mediation Procedures Rule

On November 3, 2011, the Supreme Court of Florida amended Florida Rule of Civil Procedure 1.720 (Mediation Procedures).  Applicable to court-ordered mediations, the new amendments became effective on January 1, 2012.  The changes are seemingly subtle and may not significantly affect individuals, small businesses, or some insurers.  Nevertheless, strict compliance could be difficult for large, nationwide businesses that are involved in much litigation throughout their business areas and where many same-day mediated settlements have the potential to significantly affect the “bottom line.”  In this article, we will discuss the changes to the mediation rule.  In a related blog, we discuss underlying policies the new amendments seem to ignore and problems the amendments may create.    

Prior to the amendment, the mediation procedures rule required that the following must personally appear at a mediation conference, unless otherwise ordered by the court or stipulated by the parties:   

(1)    The party or its representative having full authority to settle without further consultation.

(2)    The party’s counsel of record, if any.

(3)    A representative of the insurance carrier for any insured party who is not such carrier’s outside counsel and who has full authority to settle up to the amount of the plaintiff’s last demand or policy limits, whichever is less, without further consultation. 

Fla. R. Civ. P. 1.720(b) (2011).  These attendees are all still required.  See Fla. R. Civ. P. 1.720(b) (2012).  The amendment changed this section (b) to include an “and” between sections (1) and (2) and between sections (2) and (3).  See id.  This change apparently means that under the right circumstances, up to three persons will be required to attend mediation on behalf of one party.   

In a significant substantive change, the amendment added a definition for “party representative having full authority to settle.”  Fla. R. Civ. P. 1.720(c) (2012).  Now under the rule, that person is “the final decision maker with respect to all issues presented by the case who has the legal capacity to execute a binding settlement agreement on behalf of the party.”  Id.  This broad definition could easily go beyond considerations of money amounts—and include any number of possibly unanticipated negotiable terms including, among others, the waiver of various legal rights, market sharing in a business context, or implementing new corporate procedures to correct an alleged wrong.

The amendment also contains a new requirement to certify with the court the identity of those who will attend the mediation conference on behalf of a party and those individuals’ authority to settle.  The rule provides, “unless otherwise stipulated” and “10 days prior to appearing at a mediation conference,” each party “shall file with the court and serve all parties a written notice identifying the person or persons who will be attending the mediation conference” and “confirming that those persons have the authority required by subdivision (b).”  Fla. R. Civ. P. 1.720 (e).  The rule is clear that the responsibility for making this certification belongs to the party and states that failure to appear in accordance with the party’s certification will create a rebuttable presumption of failure to appear at all, with possible resulting sanctions.  See Fla. R. Civ. P. 1.720 (f).  Now, more than ever, clear communication between a party and its counsel will be necessary prior to the mediation conference to assess the issues and to accurately identify the person or persons with full authority to settle those issues.   

The rule always included a sanction for failing to appear without good cause by permitting the court to award mediation fees, attorneys’ fees, and costs against the party failing to appear.  Fla. R. Civ. P. 1.720(b) (2011).  The amended rule contains these same sanction provisions and now provides that “[t]he failure to file a confirmation of authority required under subdivision (e) above, or failure of the persons actually identified in the confirmation to appear at the mediation conference, shall create a rebuttable presumption of a failure to appear.”  Fla. R. Civ. P. 1.720(f).

At first glance, it may appear that the rule has not really changed all that much.  Parties appearing at mediation were always required to appear with “full authority to settle without further consultation.”  The significance of the changes to the rule, however, is that they tighten up the appearance requirement and create a means of enforcing it without piercing the confidentiality afforded the mediation proceedings.  See §§ 44.401-44.406, Florida Statutes (The Mediation Confidentiality and Privilege Act).  The Committee Notes to the 2011 Amendment point out that the new definition of “a party representative with full authority to settle” creates “objective standards.”  The Committee Notes further explain, “Whether or not these standards have been met can be determined without reference to any confidential mediation communications,” i.e., by the court.  As to the new certification requirement, the Committee Notes highlight that parties must “confirm their respective settlement authority by means of a direct representation to the court.  If necessary, any verification of this representation would be upon motion by a party or inquiry by the court without involvement of the mediator and would not require disclosure of confidential mediation communications.”   

Possibly, the rules committee was concerned that when a party did not attend a mediation conference in good faith, there was no possible recourse for the opposing party because the confidentiality requirements for the mediation proceeding precluded any discussion in court of what happened in mediation.  Now, there are enforceable elements of the attendance requirement that must be confirmed directly with the trial court outside of the mediation setting.  One wonders whether these new procedural requirements, rather than assisting in relieving the cost and length of the litigation process, as mediation is intended to do, will actually create more obstacles as parties, unhappy with the result of mediation, unleash their frustration through motions for sanctions, requiring even more hearings to determine whether the procedural rule was followed.    

Notably, the amended rule permits a court order or a written stipulation by the parties to modify the appearance requirements.  See 1.720(b) (stating that a party is deemed to appear if the three persons listed by the rule are physically present “[u]nless otherwise permitted by court order or stipulated by the parties in writing”).  The rule is also clear that it does not “require any party or party representative who appears at a mediation conference in compliance with this rule to enter into a settlement agreement.”  Id.  1.720 (c).  Even the certification requirement is modifiable by stipulation.  See 1.720(e).  The Committee Notes acknowledge, “The concept of self determination in mediation also contemplates the parties’ free choice in structuring and organizing their mediation sessions, including those who are to participate.  Accordingly, elements of this rule are subject to revision or qualification with the mutual consent of the parties.”     

The parties’ ability to cooperate and come to pre-mediation-conference agreements that allow them to truly structure the mediation session to meet the needs of their case may be the very first indication of whether the mediation conference itself will be successful! 

Author: Amy L. Miles

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