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Florida Mediation Procedure: PLEASE, Send Your Mediator A “Courtesy” Copy Of Your Certificate of Authority!

March 30, 2012

As I predicted, a large flaw in the recent change to mediation procedure in Florida, requiring advance notice of those who will be attending mediation with the required  “full authority”, is already rearing its ugly head. 

 The rule’s flaw?  The LACK of any requirement to send a copy of the “new” Certificate of Authority to your mediator!

As I pointed out in my earlier “notice to the wise”, “The 2012 Mediation Rule Changes:  A Few More Concerns”, February 3, 2011,  this obvious flaw in the rule is making itself felt each time any party believes that their mediation did not receive the attention it should have. 

Guess, when the issue of proper attendance arises, who is the first person asked to review the matter?  That’s right, the mediator

And, then guess who is the only one that is not on the official list to be sent this critical advance information?  Right again, the mediator.

Do yourself (and your mediator) a favor.  Right this minute, walk over to your legal assistant, para-legal or secretary (or all three) and tell them that in the future, for each such Certificate of Authority,  to ALWAYS  show the mediator on either the service list or at the least, a “CC”.  (We haven’t used carbon copies for a long time, but “courtesy copy” will be fine!)

(And, until your opposition will do the same, please consider sending a copy of your opponent’s Certificate that you receive, as well!)

As important as it is to let your mediator know who is coming with authority for the sake of possible future sanctions under the same rule, there are other equally, if not more, important reasons for this critical advance information for your mediator.

First, it is critical for your mediator to know which, if any, of your parties are going to appear.  Despite the rule requiring party attendance, mediations still are being “avoided” by parties, routinely, for various and sundry reasons.  A risky thing, but unfortunately, a common occurrence.

Letting your mediator know the specific name of each party who WILL be present is very helpful in allowing a relationship to begin between that party and your mediator.    (As is knowing who will NOT be present.)

And, in the case of  corporate parties, the specific name of each designated corporate representative, is equally important.  Often such a notice is the only official personal identification  that your mediator will have of them until after being introduced to them just as mediation begins!

Recording correct names and corporate positions and relationships in the crush of simply getting everyone in position for the opening conference is difficult for any mediator.

Second, it is critical to know the name(s) of  the insurance professionals, the official representative of any and all insurance carriers who will be present.  Again, knowing the actual names of these all-important (and mandatory) participants allows your mediator to begin a relationship with the person often most in charge of payment.   And we all know the importance of payment to the success of any mediation.

And, hopefully, you will also include the correct name of each insurance carrier attending that is represented by that professional.  In the present day, with insurance companies names being so numerous and difficult to pin down, this simple advance identification becomes another bit of critical information important to everyone at your mediation. 

But most of all, simply establishing this advance basis for these early, direct and personal relationships with persons being met for the first time by your mediator  is one of the most important tools for mediation success for any mediator.

Third, your mediator is required to keep an attendance report of those specifically in attendance and upon whose behalf they attended.  In large groups, despite any mediators best efforts, such information, in writing, and in advance, is critical to accuracy of such attendance recording.

I do not believe future potential sanctions should be the only driving force behind this “Plea”, but anything that also allows your mediator more information, in advance of mediation, actually, aids your success, not theirs!

Hopefully the rules committee will address this clear notice problem by amending the rule and soon!.  In the meantime, perhaps judges, including those who also follow my blog, will also include in their mediation orders that both a copy of their Orders of/to Mediation (no, we often do NOT get these, either!) and copies of  all Certificates of Authority will be sent to the respective mediator in every mediation.

In the meantime, your mediator can never receive too much information.  Put your mediator on every one of  your notices used in mediation, PLEASE!

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