Mediation - Part III

A. The Mediation Conference

1. If a party fails to appear at a duly noticed mediation without good cause, the court upon motion shall impose sanctions against the party failing to appear. Those sanctions may include an award of the mediator’s and attorney’s fees and costs. Fla. R. Civ. P. 1.720(b).

2. If a party is a public entity operating under Chapter 286, Florida Statutes, the entity is deemed to have appeared by the physical presence of a representative with full authority to negotiate on behalf of the entity and to recommend settlement to the appropriate decision-making body of the entity. Fla. R. Civ. P. 1.720(b).

3. Except for such public entities and unless stipulated by the parties or changed by court order, a party is deemed to appear at a mediation if the following persons are physically present at the mediation:

a. The party or its representative having full authority to settle without further consultation;

b. The party’s counsel of record, if any; and

c. 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, which ever is less, without further consultation.

Fla. R. Civ. P. 1.720(b).

4. Pursuant to Florida Rule of Civil Procedure 1.720(b), a party’s failure to appear at a mediation without good cause requires the trial court to impose sanctions, including both mediator costs and attorney’s fees. Carbino v. Ward, 801 So. 2d 1028 (Fla. 5th DCA 2001). In Carbino, defendants failed to appear at a court-ordered mediation, but their insurance carrier’s representative appeared with full authority to settle up to the policy limits. The plaintiff, however, had not agreed to limit his demand to such limits. Under these facts, the appellate court agreed with the trial court’s finding that the defendants had failed to “appear” at the mediation and the trial court was required to impose sanctions against them. Id.

5. At all times, the mediator shall be in control of the mediation and the procedures to be followed in the mediation. Fla. R. Civ. P. 1.720(2)(d).

6. Each party to a mediation has the privilege to prevent any person present at the mediation from disclosing communications made during the mediation. Fla. Stat. § 44.102(3).

7. However, Section 44.102(3), Florida Statutes, would not be applied to preclude evidence supporting claim that a mediated settlement agreement contained a clerical error so as to lead the court to an unreasonable conclusion. Dr Lakes, Inc. v. Brandsmart U.S.A. of West Palm Beach, 819 So. 2d 971(Fla. 4th DCA 2002), quoting Holly v. Auld, 450 So. 2d 217, 219 (Fla. 1984); but see Feldman v. Kritch, 824 So. 2d 274, 276 (Fla. 4th DCA 2002) (no exception for “unilateral mistake”).

8. If one party unlawfully discloses such communications to any person not present at the mediation, the disclosing party may be subject to sanctions by the court, including striking the party’s pleadings for violating the mediation privilege. Paranzino v. Barnett Bank of So. Fla., 690 So. 2d 725 (Fla. 4th DCA 1997).

9. Evidence of settlement negotiations may be admissible in a federal criminal investigation or trial. There appears to be split of authority among the federal courts on the issue. See U.S. v. Gonzalez, 748 F.2d 74, (2nd Cir. 1984); Manko v. U.S., 87 F.3d 50 (2nd Cir. 1996); U.S. v. Meadows, 598 F.2d 984 (5th Cir. 1979); U.S. v. Hays, 872 F.2d 582 (5th Cir. 1989); U.S. v. Logan, 250 F.3d 350 (6th Cir. 2001); U.S. v. Prewitt, 34 F.3d 436 (7th Cir. 1994); U.S. v Arias, 431 F.3d 1327 (11th Cir. 2005).

10. Mediation must be completed within 45 days of the first mediation conference unless extended by order of the court, the arbitrators or by stipulation of the parties. Fla. R. Civ. P. 1.710(a).

11. For the most part, the mediation conference is conducted in at least two stages.

a. Joint Session: Initially, the mediator will conduct a joint caucus in which the mediator and then each attorney will give brief opening statements. Each party should be advised by their attorneys prior to the mediation that they will hear certain statements from the opposing attorney with which the party may disagree. Nevertheless, each attorney and his or her client, if they desire, will have the full opportunity to be heard without interruption. Each person attending the mediation is expected to act in a civil, respectful manner to all other persons present.

b. Private Caucus: After the joint session, the mediator will separate the parties and their respective attorneys into private sessions or caucuses in which they may feel more free to candidly discuss other aspects of the dispute and how it may be resolved.

12. Although attendance at any court ordered mediation is mandatory, participation in the process is completely voluntary. It is a party's right to refuse to compromise or settle any claim and to have their day in court. Fla. R. Civ. P. 1.730(a).

13. “Decisions made during a mediation are to be made by the parties. A mediator shall not make substantive decisions for any party. A mediator is responsible for assisting the parties in reaching informed and voluntary decisions while protecting their right of self-determination.” Fla. R. Med. 10.310(a) (emphasis added).

14. Indeed, the mediation conference is an opportunity for the parties to control the outcome of the case and to fashion a resolution to the dispute which is certain and may encompass terms which an arbitrator or a court may not otherwise be able to award.

B. Mediator’s Report On Mediation Conference

1. If no agreement is reached, the mediator must report the lack of an agreement to the court without comment or recommendation. With the consent of the parties, the mediator’s report may also identify any pending motion or outstanding legal issues, discovery process, or other action by any party which, if resolved or completed, would facilitate the possibility of a settlement. Fla. R. Civ. P. 1.730(a).

2. The mediator is also required to report to the court the names of all persons who attended the mediation. Fla. R. Civ. P. 1.720.