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New Rule on Appearance at Mediation
07/11/2012Florida Supreme Court Amends Rule 1.720, Fla.R.Civ.P., Mediation Procedures.
The Florida Supreme Court recently adopted an amendment to the Mediation Procedure Rules dealing with who must appear at a mediation conference. (See , Opinion No. SC10-2329, November 3, 2011, amending Rule 1.720, Fla. R. Civ. P.). Before the rule changed, subsection (b) required attendance at mediation by a representative of a party having "full authority to settle," but the rule was somewhat ambiguous and lacked teeth. Subsection (b) now requires essentially the same people to be physically present at the mediation conference, but makes it clear that all of these individuals must be present unless otherwise permitted to be absent by court order or through stipulation of counsel in writing. The new subsection (b) now uses the following language to define who must attend:
- The party or a party representative having full authority to settle without further consultation; and
- The party's counsel of record, if any; and
- 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 in an amount up to the amount of the plaintiff's last demand or policy limits, whichever is less, without further consultation.
The subsequent sections of the rule are where the real changes are made.
New subsection (c) attempts to define what is meant by a representative having "full authority to settle," and requires the attendance of the "final decision maker" with respect to all issues in the case, and one who has the legal capacity to bind the party. In subsection (d) a public entity is required to have the physical presence of a representative with full authority to negotiate and recommend settlement to the appropriate decision-making body of the entity. Obviously, this provision attempts to accommodate governmental bodies whose boards or commissions are required to give final approval.
The new subsection (e) makes a very significant change by requiring each party to file with the court a "Certification of Authority" to be served on opposing parties at least 10 days prior to mediation. The Certification must identify the persons who will be attending the mediation conference as a party representative or insurance carrier representative. It must also confirm that each such person has full authority to settle.
New subsection (f) is the sanctions provision of the rule, and is much the same as the old subsection (b) regarding sanctions. It allows a party to seek sanctions from the court against an opposing party for failure to "appear" at mediation within the meaning of the rule. Upon a showing of lack of good cause, the court shall impose sanctions, including mediation fees, attorney's fees and costs. It is specifically provided that failure to file the "Certificate of Authority" required by subsection (e) creates a rebuttable presumption of non-appearance by that party. The remaining provisions, (g) through (k), although re-lettered to accommodate the sections which were added, remain basically unchanged.
The Committee Notes to the amended rules are informative in that they make it clear that the mediator should not become involved in the enforcement process and is not required to disclose confidential mediation communications. This is a recognition of the role of the mediator as a neutral facilitator in the process. The Committee Notes also recognize that the parties have a "free choice in structuring and organizing their mediation sessions." In other words, the parties may stipulate who shall be required to attend and whether attendance will be in person or electronically.
The very important addition to the new rule requiring a Certificate of Authority to be filed appears to have been taken from the Supreme Court's Administrative Order in Residential Mortgage Foreclosure Mediation (RMFM) cases by requesting certification similar to "Form A" required of the lending institution in these cases.(See, Administrative Order No. AOSC 09-54, Appendix A, Model Administrative Order, paragraphs 13 and 14.) "Form A" requires the bank representative with full settlement authority to be disclosed before a foreclosure mediation.
In conclusion, the new rule change follows a recent 5th District Opinion in the case of Mash v. Lugo, et. al., 49 So. 3rd 829 (Fla. 5th DCA 2010). In Mash, the court granted sanctions for failure of a party having full settlement authority to attend an appellate mediation. The sanctioned party was required to pay mediator's fees, attorney's fees and costs under Rule 9.720(a), Fla. R. App. P., which is the appellate counterpart of Rule 1.720.