Tuesday, June 28, 2005

Listen to What the Mediator “Advises” or Else! Whaaat?!?

A Massachusetts [could this happen in Florida?] trial judge denied a party’s motion for summary judgment partly on the basis that the defendant insurance company’s failure to follow the advice of several different mediators [notice the plural here] over a four year period could constitute evidence of bad faith refusal to settle in the case. The judge’s lengthy opinion [it takes some time to download] in Massachusetts Port Authority v. Employers Insurance of Wausau, a Mutual Company, Civil Action No. 95-3079-A [Mass. Superior Court 2004] contains the following language on pages 11 and 12:

“At least one factor deprives [Wausau] of the conclusiveness necessary for summary judgment . . .: the recommendation of the mediator James Lynch that Wausau should make an offer in the vicinity of the policy limit.”

“The detailed chronology recited above contains abundant indications of issues of irrational or bad faith behavior . . . includ[ing] . . . Wausau’s imperviousness to the views of mediator Steadman...[and] Wausau’s continuing immobility against the views of mediator Shubow”.

Hmmm! Do you have a problem with mediators giving advice? Take a look at Florida’s Rules for Certified and Court-Appointed Mediators, Rule 10.370 Professional Advice Or Opinions

(c) Personal or Professional Opinion. A mediator shall not offer a personal or professional opinion intended to coerce the parties, decide the dispute, or direct a resolution of any issue. Consistent with standards of impartiality and preserving party self-determination however, a mediator may point out possible outcomes of the case and discuss the merits of a claim or defense. A mediator shall not offer a personal or professional opinion as to how the court in which the case has been filed will resolve the dispute.

Wait!!! What about the confidentiality of mediation communications? Take another look at the confidentiality provisions of Florida’s Mediation Confidentiality and Privilege Act, especially F.S. 44.405.

And, in the spirit of mediation, can you think of anything else?

You might like to know that this decision has been appealed.

To email me, click Perry S. Itkin.
Visit the Mediation Training Center.