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Mediation Certificate of Authority: A Few Thoughts on Questions Being Raised

May 3, 2012

Midway through the first year of the newest significant requirements of Rule 1.720, Florida Rules of Civil Procedure, regarding Mediationseveral questions are being raised, repetitively.

As, hopefully you know, section (e) of that Rule presently requires the timely filing and service of  a “Certificate of Authority”, a notice to your opposition of those anticipated to be attending mediation with the required authority. 

Despite the rather clear wording of the Florida Supreme Court rule many mediation parties still do not seem to be complying with the new law.   And, clearly, many more attorneys seem oblivious to the clear threat of what their non-compliance could cost their clients (and them).

As always, with time, controversy and using the courts, each of these issues will be fully and legally settled.  In the meantime,  and perhaps in avoidance of the issues, and  potential sanctions, I thought a commentary might be helpful.

First, is a certificate of authority really necessary?

Yes.  Effective January 1, 2012, Rule 1.720(e) states:

Unless otherwise stipulated by the parties, each party,…shall file with the court and serve all parties a written notice identifying the person or persons who will be attending the mediation conference…,and confirming that those persons have the authority required by (Rule 1.720).

As is common in such rules, it seems universally understood that the term, “SHALL“, means that the certification is mandatory.  (And, remember that the rules of procedure are historically the exclusive domain of the courts, and in this instance, by the Florida Supreme Court, who, ultimately is the final authority of almost everything involved with being a Florida lawyer!)

But, apparently still being missed, even now, are the potential threat of sanctions for non-compliance already contained in section (f) of the same rule, regarding Sanctions for Failure to Appear.

Section (f) now states: (Second paragraph:)  The failure to file a confirmation of authority required under subsection (e) above, shall create a rebuttable presumption of a failure to appear.

And, in failed mediations, guess what is one of the most common complaints?

Answer:  the opposition did not appear (with sufficient authority)!

As I warned in my earlier blog on this subject, “Be Advised:  A Major Change in the Florida Rules of Procedure Regarding Mediation Procedure”, November 22, 2011, penalties for failing to meet this new requirement are unlikely to be sought when your mediation is successful.  But, if it is not?   Do you really want to give your opposition any additional ground to attack you?

Second, is there a specific form that is required for the certificate?

So far, no.

However, like many other “forms”, you might want to first create your own by simply tracking the rule, word by word.   At the least it requires you to fully understand the substance of the requirements of the rule.  Then, consider sharing and comparing with others how they are complying.

But, until a form is officially provided, it seems likely the courts will be very lenient to anyone who at least seems to have tried to fully comply.

Third, who has to file the required certificates of authority?

Some seem to believe that only “corporate” parties need file the certificate.  After all, “individual parties obviously have the authority”.

As popular sports commentator, Lee Corso, would say, “not so fast!”.  Look closely, the rule clearly states, “EACH PARTY”.  It does not differentiate between types of parties.

(Other portions of the rule likely contribute to this confusion.  And, to some other potential issues.  However, I still hesitate to discuss these possible future problems with portions of the new rule for similar reasons to my avoidance last year.)

However, again, why would you want to even risk a sanction (or, worse,  a possible defense to your own attack against your opposition for their failure) in NOT filing your certificate for any party you represent?

(An interesting side issue that this may present, however, is what will be the effect upon “pro se” parties?  Already at a substantive disadvantage, it is not implausible to foresee that many represented parties may use any such procedural failure against a Pro Se party who fails to comply?)

Fourth, does the certificate require filing with the court?

I confess,  I missed this potential issue when considering all of the other future issues of not including the mediator on the service list.  But, as you can see from reading the express language of the above rule, this certificate must be filed with the court.

At the least, however, this filing resolves any  potential issue of strict accountability for timely filing/notice, “10 days prior to appearing at mediation conference“.   ( But, for example, does that mean notice timely sent, but NOT filed timely, is a failure to appear?  Or, is such a notice that is sent and filed, but untimely, is still a failure to appear?   These and other questions are still to be answered.)

Again, a word to the wise, don’t wait until the last moment!  Unless you want your client’s name to appear in Southern 3rd, etc..

I close with a couple of  positive observations about the rule change.

First, many attorneys representing corporate defendants, and particularly insurers, are applauding this rule change as beneficial to them (and thus to mediation success).  They finally have an excellent reason to obtain an advance commitment for attendance from specified persons of their corporate entities.   Unlike individual parties, often direct  early consultation with corporate parties with authority is quite complicated even for their own attorneys.

Second, many plaintiff attorneys who are lax upon meeting pre-mediation summary deadlines, with this new court-sanctioned deadline, are using a similar timeframe for their summaries.  As usual, anything your mediator can obtain prior to the mediation is valuable to your success.  So, “whatever it takes”.

I still encourage attorneys who mediate with me to send me courtesy copies of their certificates for all of the contribution I believe it makes to their (and my) mediation success.  See,Florida Mediation Procedure:  PLEASE, Send Your Mediator a “Courtesy Copy” of your Certificate of Authority“, March 30, 2012.   So, again, I strongly suggest it is quite valuable for you to do so.

But, regardless, if you haven’t already begun to strictly follow the newest mediation rule change, make sure you now begin to timely file and serve your mediation certificate of authority for YOUR party!

What Do You Think? Your Insight Can Be Helpful To Others.

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