Tuesday, November 30, 2004

“But I Don’t Want to Go to Mediation!” What we can learn from England?

Florida Rules of Civil Procedure Rule 1.700 (b) provides:

(b) Motion to Dispense with Mediation and Arbitration. A party may move, within 15 days after the order of referral, to dispense with mediation or arbitration if:

(1) the issue to be considered has been previously mediated or arbitrated between the same parties pursuant to Florida law;
(2) the issue presents a question of law only;
(3) the order violates rule 1.710(b) or rule 1.800; or
(4) other good cause is shown.

Examples of what might satisfy “other good cause” can be found in the recent English Court of Appeal opinion Halsey v Milton Keynes General NHS Trust: Steel v (1) Joy (2) Halliday [2004] EWCA (Civ) 576. The Court of Appeal set out a non-exhaustive list of factors which may be relevant to the question of whether a refusal to mediate (i.e. dispense with mediation) is reasonable:
  • the nature of the dispute
  • the merits of the case
  • the extent to which other settlement methods have been attempted
  • whether the costs of the ADR would be disproportionately high
  • whether any delay in setting up and attending the ADR would have been prejudicial
  • whether the ADR had a reasonable prospect of success.

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