Mediator On A Tightrope – MEAC Opinion 2006-003!

Hmmm!!! Florida Rule of Civil Procedure 1.720(b) provides in pertinent part:

Sanctions for Failure to Appear. If a party fails to appear at a duly noticed mediation conference without good cause, the court upon motion shall impose sanctions, including an award of mediator and attorneys’ fees and other costs, against the party failing to appear. . . .[U]nless stipulated by the parties or changed by order of the court, a party is deemed to appear at a mediation conference if the following persons are physically present:

(1) The party or its representative having full authority to settle without further consultation.
(2) The party’s counsel of record, if any.
(3) 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.
[Emphasis added.]

So, what if, during the mediation process, the mediator learns that a party or representative doesn’t have “full authority” – can the mediator report that to the court? [Not so fast!] Should the mediator be able to report that to the court?

What about confidentiality and Florida Rules for Certified and Court-Appointed Mediators, Rule 10.360 and Florida’s Mediation Confidentiality and Privilege Act, F.S. 44.405 [Confidentiality; privilege; exceptions.]?!??!? Is lack of authority to settle one of the exceptions to confidentiality set forth in the Rule or statute? [Nope!]

Just what can/should the mediator report to the court? Read this interesting MEAC Opinion to figure out how to think about [after all, it is a dilemma, i.e. mediator accountability to the court Florida Rules for Certified and Court-Appointed Mediators, Rule 10.500] and how to address this situation [or not]!

Do you see any problems here? Seriously, please let me know.

To email me, click Perry S. Itkin.

MEAC 2005-007 Now Online!

Here’s a summary of MEAC Opinion 2005-007 which addresses the scheduling of a mediation conference, rescheduling a mediation conference, and party nonappearance:

1. If a party is requesting that the mediation be rescheduled for “good cause,” the mediation should be rescheduled to a mutually convenient time consistent with Florida Rules for Certified and Court-Appointed Mediators, Rule 10.330(a). If the party is objecting to attending mediation, the mediator cannot compel attendance, however, the party should be advised that pursuant to Florida Family Law Rules of Procedure, Rule 12.741(b)(2), the party may be subject to sanctions by the court for “nonappearance.”

2. A report to the court regarding nonappearance should not include any reason for the nonappearance.

3. A date for mediation may be set without the advance agreement of all parties, but then any party would be permitted to request that it be rescheduled.

4. A mediator may report non-appearance at a mediation if the mediator gave the non-appearing party due notice of the date and time for the mediation session and good cause was not shown for rescheduling.

Although the question raised in this Opinion was in the context of a family mediation, the lessons are applicable in other mediations. For example, take a look at Florida Rules of Civil Procedure, Rule 1.720.

This is a very interesting and informative Opinion and is well worth reading!

To email me, click Perry S. Itkin.