Monday, February 20, 2006

“E.T.” Is Barred From Mediation!

Well, not exactly the real “E.T.” [the real E.T.?]– the concept is there however according to this article in The Birmingham News. A U.S. District Court Judge [not in Florida] ordered all parties [HealthSouth, investors and insurers] to stay at a mediation session until the mediator releases them. The Judge also ordered that the “designated client representative of each defendant shall have absolute authority to settle without the need to phone home for additional authority.”

Florida Rules of Civil Procedure, Rule 1.720(b), Mediation Procedures – Sanctions for Failure to Appear, requires, among others, the appearance of the party or its representative having full authority to settle without further consultation or 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, whichever is less, without further consultation.

So, the Judge’s order on the issue of authority to settle is consistent with the above rule. However, what do you think about that part of the order that requires the parties to stay in mediation until released by the mediator? Any ethical dilemmas here? How do you balance the mediator’s responsibilities to the court with the mediator’s responsibilities to the parties?

What about Florida Rules for Certified and Court-Appointed Mediators, Rule 10.420(b), Conduct of Mediation, Adjournment or Termination?

A mediator shall:

(1) adjourn the mediation upon agreement of the parties;

(2) adjourn or terminate any mediation which, if continued, would result in unreasonable emotional or monetary costs to the parties;

(3) adjourn or terminate the mediation if the mediator believes the case is unsuitable for mediation or any party is unable or unwilling to participate meaningfully in the process;

(4) terminate a mediation entailing fraud, duress, the absence of bargaining ability, or unconscionability; and

(5) terminate any mediation if the physical safety of any person is endangered by the continuation of mediation.

After considering this rule, would you mediate under this order or would you decline the appointment?

To email me, click Perry S. Itkin.