Update to Florida's Mediation Rules

Mediation - Part V

Appearance at the Mediation Conference

1. Unless permitted by court order or the parties’ written agreement, a party is deemed to appear at a mediation if the following persons are physically present:

a. The party or the party’s representative having full authority to settle without further consultation; and

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)(2012). Thus, the mediator does not have the authority to excuse any attorney, party or insurance carrier representative from attending the mediation in person, unless the parties are have agreed in writing.

2. Full authority to settle means that the person attending the mediation is the final decision maker with respect to all issues presented by the case and who has the legal ability to execute a binding settlement agreement. Fla. R. Civ. P. 1.720(c)(2012). As a result, it may be extremely difficult for most insurance carriers and large corporations to strictly comply with this rule. However, this rule does not require any party to actually enter in a settlement agreement. Id.

3. Appearance by a public entity under Chapter 286, Florida Statutes, only requires the party’s representative to physically appear at mediation with full authority to negotiate on behalf of the entity and recommend settlement to the decision-making body of the entity. Fla. R. Civ. P. 1.720(d)(2012).

4. Unless otherwise agreed upon by the parties, each party must, 10 days prior to the mediation, file and serve a written notice identifying the persons who will be attending the mediation as a party representative or as an insurance carrier representative and confirm that those persons have full authority as required under the rule. Fla. R. Civ. P. 1.720(e)(2012).

5. 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, including the mediator’s fees, attorney’s fees and costs. The failure to file a certification confirming the representative’s authority or the failure of the person identified in the certification to actually appear at the mediation creates a rebuttable presumption of the party’s failure to appear. Fla. R. Civ. P. 1.720(f) (2012).