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Florida’s Mediation Certificate of Authority: More Thoughts on More Questions Being Raised

May 31, 2012

More questions are being raised regarding the new sections (e) and (f) of Rule 1.720, Florida Rules of Civil Procedure, regarding Mediation.  These are the sections that deal with the new requirement for parties to give timely notice of the  specific identification of those who will be attending mediation.

And, equally important, the sanctions for failure to comply!

My intent by discussing these questions, like all of my educational blogs, is to encourage thought to potential issues before they become a problem for you.

In an earlier Educational Blog, I identified four repetitive questions/issues being raised with the new rule and attempted to suggest some answers, if for no other reason than to promote thought.  See, “Mediation Certificate of Authority:  A Few Thoughts on Questions Being Raised,  May 3, 2012.  Those questions, included, 1) whether the certificate was really required, 2) in what form,  3) by whom, and 4) whether filing of the notice was required (and when).

I will continue the numbering system from that former article, to keep these newer questions in sequence for those likely to follow.  There will, undoubtedly, be more questions until the rule is appropriately amended and/or interpreted by our courts.

Here are the most recent:

Number 5,  do these newest rule changes apply to so-called,  “voluntary” mediations ?  (Perhaps the much larger questions are what is a truly voluntary mediation and whether any portion of Rule 1.720 applies to so-called “voluntary” mediations?)

Answer:  Probably not, if the mediation you characterize as “voluntary” means it is not subject to the Florida Rules of Civil Procedure. 

Some,  clearly are not required to be conducted by any set procedure.  For example, truly voluntary mediation conferences between disputing parties (i.e. , as opposed to ordered by statute as a pre-condition to litigation) of matters not in litigation, likely would clearly qualify for the “voluntary” distinction.

But because such a volume of Florida’s mediations, in litigation, are often characterized by the parties as “voluntary” vs. “court-ordered” (whether really such or simply in anticipation of the inevitable coming court order), it seems this voluntary v. court-ordered distinction is a very legitimate issue to contemplate and discuss.

To begin you should probably first ask, what is the distinction, if any, between a voluntary or court-ordered mediation?

“Court-ordered” (and “referred”), seems quite self-explanatory.  (Note, Florida law and the Florida Rules of Civil Procedure pertaining to mediation use both terms, “referred” by the court and “court-ordered pertaining to court control.  See, Chapter 44, Fla. Statutes 2012 and Rules 1.700-1.750. FRCP)

Obviously, the terms likely mean that there is then in existence an order “referring” the parties to mediation.  But, be careful, it may not be obvious.  Such an order may be contained in a dedicated order or incorporated into another general order, i.e. a Case Management Order, or in some jurisdictions, even a Local Rule or the “standing procedures” of a particular judge.  Before you consider yours “voluntary” because of an alleged absence of an order, make sure you know!

But what then, assuming no court order, really constitutes a “voluntary” mediation?

Some suggest that another term for voluntary, as opposed to court-ordered,  is the term, “private”.  (See, Dispute Resolution, Inc., Perry S. Itkin, Ft. Lauderdale, my highly respected mediator trainer-mentor) and divide mediations more generally between those in the legal system (“court-ordered”) and those not (“private”).  I, of course, agree.

Confusingly, some “required mediations” are not yet in the court system, but are in the legal system.  i.e. Pre-suit mediations in Medical Negligence or Nursing home disputes, for two examples, are mandated by statute as a pre-condition to enter the court system.

Accordingly, “Private” v. “Legal System” seems a better distinction.  Clearly if you are not yet in the legal system, you can consider yourself private, and thus, voluntary.  But, once you are in the legal system, can you still be “voluntary”?

I  personally suggest  the differentiation for you to consider when making any “voluntary” distinction is for you to separate those disputes actually in-suit from those where suit has not yet been filed.  If there is no judge, it is difficult to contemplate where any structure is “required”.

For today’s discussion purposes, then, I will narrow the focus of this comment, even more, to only those matters, already in suit in Circuit Court (in Florida).

Are any such in-suit matters ever really “voluntary”?

When in doubt of your legal grounds, my old law professor said, start with your statutory law.

Chapter 44, which is the basic statutory authority for mediation in Florida, does not  use the term, “voluntary (or private) mediation”.   But, rather it defines “Mediation”, to include,”…mediation of civil cases…in circuit court”.  i.e.  thus, clearly in-suit matters.  It does not even address mediations of matters not in litigation.

And, look closely at the definition of how a mediation is obtained, if in-suit!

Once in-suit, obtaining mediation requires only the request of ONE party!  And if requested, it MUST be ordered to mediation.  And “under rules adopted by the Supreme Court”.

Therefore, when parties in litigation “request” a mediation of each other (obviously one party or the other has to raise the issue) and then agree to it (“voluntarily”), other than the bald omission of the formal court order memorializing the “request”, it is hard to see any legal difference to such a mediation thereafter conducted.

And particularly if the parties schedule the mediation simply to remove a procedural requirement they “know” is coming.  Or, for example, when one of the parties chooses to argue that they should not now be ordered, “again”, to mediation “because they already participated in a voluntary one”.

Accordingly, I submit that any mediation of a dispute in litigation, with or without an active order, at best, is nothing more than a mediation “in contemplation of an order of mediation”.   At worst, once you are in litigation, you automatically become subject to the Rules of Civil Procedure, including those applicable to mediation.

There is still a possible distinction, but is it one without a difference?  And, one of these days, one of the appellate courts will let us all know.

In the meantime, do you want to be the one who finds out your interpretation was not correct?

If not, I suggest the obvious:  Treat EVERY in-suit mediation as if it were court- referred/ordered!

In fact, why not treat every mediation the same?  How much real difference is there?

Number six, who must be “identified”  with certified authority to be attending the formal mediation conference?

Answer:  “…the person or persons who will be attending…as a party representative or as an insurance carrier representative (with)…the authority required….”.

Those are the exact words describing who must be identified.  And they seem quite self-explanatory using the usually accepted legal meanings of those words as used in legal discovery .

A “party representative” will obviously include the party’s attorney, by name. ( And the party’s attorney is specifically also required in addition to any party for any valid “appearance”.)  And, if a party is a corporation, it will require notice of the name of a corporate representative.  And, of course, the name of any insurance representative.

But, I suggest, you must also specifically name any individual party  (yes, Plaintiff and Defendant) that will be attending to be in total compliance.  After all, who else will have the “authority required by subdivision (b)”, i.e. without further consultation to speak for the individual party.  (Again, I will not discuss other potential alternatives to avoid clouding the waters.)

Number seven, is a certificate of authority required  if you have “stipulated away” that no certificate is necessary?

(Or, if you have waived any other appearance requirement?  Or, stipulated that your mediation is voluntary and therefore NOT subject to Rule 1.720, etc.!)

Respected Florida mediator-trainer, Charles N. Castagna,  Clearwater, points out that the Committee Notes to these 2011 amendments “contemplates the parties free choice in structuring (their mediation)…including who are to participate” and thus suggests as one option a timely stipulation as to how they wish to conduct mediation. (See, Mediation News You Can Use, May-June 2012)

He is correct.  But, it better be in writing!  Look closely, any appearance issue under the rule is mandatory, unless permitted by court order (presumptively, in writing) or stipulated by the parties in writing.

Such a stipulation could be quite easy.  For one method, a simple “agreed” Notice of Voluntary Mediation, setting forth the agreements of the parties, and signed by both counsel, would seem to be acceptable.

And, maybe any problem with the court could be cured by the parties verbally agreeing, even after the fact, that their actions were stipulated.  (Although caution, not always for some judges!)

But, what if one of the parties is disgruntled?  (That does happen,  you know.)  How then are you to prove your pre-mediation “stipulation”?

Again, either be very precise with any exception you wish to seek and get it “in writing”, or treat every mediation as if it were court-ordered! 

I, of course, recommend the latter.  Again, why complicate your life with exceptions?  No one has ever been penalized for following a rule too closely!

Number eight,  is a certificate that was filed timely for an earlier mediation still valid for a later one?

Many mediations are rescheduled.  And strangely, the wording of the present rule is quite open to interpretation.  The required notice is due “10 days prior to appearing at a mediation conference”.  Not,”no later than” or even ” immediately prior to the” mediation conference.

Accordingly, as long as those who finally do appear are listed on the timely filed certificate upon which you rely, you are probably in compliance.  At least for now.

My suggestion?  Send, and file, a current, timely certificate each time your mediation is re-scheduled.  Your mediator will love you for it and you will not have to even worry about this issue.

Other questions will undoubtedly continue to arise regarding the true “intent and meaning” of these new procedures and sanctions.  And, eventually, either the wording of these matters will be clarified by amendment or our courts will interpret them for us.

In the meantime, simply be aware of these eight questions, thus far, and consider this latest blog my continuing “words for the wise”.

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