Wednesday, December 28, 2005

“Marathon Mediation” – Potential For Coercion

Florida Rules for Certified and Court-Appointed Mediators, Rule 10.310(b) Self-Determination, Coercion Prohibited provides “A mediator shall not coerce or improperly influence any party to make a decision or unwillingly participate in a mediation.”

Rule 10.420(b)(2) Conduct of Mediation, Adjournment or Termination provides “A mediator shall adjourn or terminate any mediation which, if continued, would result in unreasonable emotional or monetary costs to the parties. . . .”

Generally, a mediator should not conduct a mediation conference which in any way would appear to coerce any party [but, you knew that!] – this would include the duration of the mediation and whether or not party [or their counsel or another mediation participant] expresses concern about the length of the conference. For instance, would a prolonged mediation conference have the unintended consequence of depriving a party of effective or meaningful representation of counsel?

Take a look at Shultheis v. Gotlin, 2005 Fla. App. LEXIS 20148 [Fla. 5th DCA 2005] for an analogous situation where an appellate issue [it starts on page 6, middle paragraph, of the opinion] involved a jury required to work a “marathon 16-hour workday” and the totality of the circumstances test. What mediation lessons can we learn from this opinion?

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