Permanent Remote Mediation Authorized By Fla. S. Ct.

This summer, the Florida Supreme Court provided permanent civil rule changes authorizing the remote conduct of certain court proceedings including mediation, appellate mediation and arbitration. The court's Workgroup on Continuity of Court Operations and Proceedings During and After COVID-19 was directed to identify whether certain proceedings, due to efficiencies beneficial to stakeholders, could continue to be conducted remotely when COVID-19 no longer presents a significant risk to public health and safety. The Workgroup determined that permanent, broader authorization for remote proceedings was warranted based on the positive outcomes and efficiencies observed during the pandemic. Beginning with Rule 1.700, Florida Rules of Civil Procedure, common to mediation and arbitration, the amended language now provides for use of communication technology (as that term is defined in Florida Rule of General Practice and Judicial Administration 2.530) authorized in mediation and arbitration by stipulation of the parties or by court order. Absent direction in the order of referral, mediation or arbitration must be conducted in person, unless the parties stipulate or the court, on its own motion or on motion by a party, otherwise orders that the proceeding be conducted by communication technology or by a combination of communication technology and in-person participation. Also of note, is that Rule 1.720 now states a party is deemed to appear at a mediation conference if physically present or, if authorized, participating through the use of communication technology. Please note under Rule 1.730, if an agreement is reached, it must be reduced to writing and signed by the parties and their counsel, by original signature, electronic signature, or facsimile and may be in counterparts. Importantly, the parties may not object to the enforceability of an agreement on the ground that communication technology was used for participation in the mediation conference if such use was authorized. Similar language is found in Rule 1.750 in regard to county court mediation. The communication technology provisions also apply to appellate mediation and are found in revised Florida Rules of Appellate Procedure 9.700, 9.720 and 9.740. These amendments become effective October 1, 2022 and recognize the sea change that took place during court closures. The shift to remote proceedings helped ease a backlog of cases by litigants being able to access hearings and alternative dispute resolution though Zoom and other available online platforms to resolve matters. See complete opinion here-- https://www.floridasupremecourt.org/content/download/843197/opinion/sc21-990.pdf

Appellate Mediation Sanctions for Non-Attendance

Participants and counsel are reminded of the importance of appearance at mediation in a recent opinion of the Fifth District Court of Appeal. In an appeal from a final judgment, Florida's 5th DCA entered an order referring the matter to appellate mediation (a program in which I've participated since 2001). The order specifically stated that representatives of the parties with full settlement authority were required to attend the mediation in person, unless excused from attendance by the court. The order further stated that the failure to appear could result in the imposition of sanctions. At the commencement of the mediation, no representative appeared for appellant which also provided no certification of full authority to settle. Appellees objected to the absence of the representative and to the limited authority of the insurance company representative. The mediation proceeded without a waiver of objections, resulting in an impasse. Rule 9.720 of the Florida Rules of Appellate Procedure (which I helped amend as a corollary of civil procedure rule 1.720) governs appellate mediation procedures and provides that if a party fails to appear at a duly noticed mediation conference without good cause, the court, upon motion of a party or upon its own motion, may impose sanctions. The 5th DCA cited in their interim opinion awarding sanctions, previous holdings in Carden & Associates, Inc. v. C.O.D. Trees Partnership, 83 So. 3d 862 (Fla. 5th DCA 2012) and Carbino v. Ward, 801 So. 2d 1029 (Fla. 5th DCA 2001), finding them appropriate for a party's failure to appear at a court-ordered mediation, even though an insurance company representative was present. The court also referenced Mash v. Lugo, 49 So. 3d 828 (Fla. 5th DCA 2010) which held imposing sanctions were appropriate against a party for failing to appear, although counsel appeared who claimed to have full settlement authority. Sanctions in the present case included all fees charged by the mediator, all reasonable attorney's fees and costs incurred in preparing for and attending the mediation, as well as the costs incurred in filing a motion for sanctions. The court reserved the right to impose additional sanctions, including dismissal of the appeal or the assessment of additional attorney's fees and costs. See slip opinion here-- HDE v. Bee-Line, Case No. 5D15-2805 http://www.5dca.org/Opinions/Opin2015/122815/5D15-2805,non-disp.op.pdf

Oral Argument on Appellate Mediation Rule Changes

Oral argument occurred this morning on my proposed changes to the Florida Rules of Appellate Procedure to conform with amendments previously passed and adopted by the Supreme Court of Florida in Florida Rule of Civil Procedure 1.720, governing Mediation Procedures. In my experience, attendance at appellate mediation is an important component of whether such cases resolve before briefing and the formalities of the rules can help the parties to anticipate with whom they'll be negotiating and the extent of authority they possess. Many times, trial and appellate counsel appear together, but it is the client that must decide whether to settle at this stage. I became certified as an appellate mediator in 2011, having been grandfathered in for mediating Florida appellate cases since 2001, before there even was a statewide certification. I was trained then by a federal mediator from the U.S. Court of Appeals for the Eleventh Circuit for the Fifth District Court of Appeal's pilot program. Mediation works in about a third of cases on appeal. There are real results that can benefit parties who have already tried their dispute. The amendments to Florida Rule of Appellate Procedure 9.720 are designed to mirror those that have been in effect for mediation of trial court level cases since 2011. Mediated settlement conferences pursuant to this rule are meant to be conducted when the participants actually engaged in the settlement negotiations have full authority to settle the case without further consultation. The proposed amendments bring the same requirements to appellate mediation. This is expected to be adopted as part of the regular cycle change. See court documents here-- http://www.floridasupremecourt.org/clerk/comments/2014/index.shtml

Appellate Mediation Frustration

Florida led the way in the establishment of alternative dispute resolution procedures to accommodate resolution without trials or the use of the judiciary. In the late 1980s, Florida passed comprehensive court-annexed mediation statutes and the past quarter century has seen enormous growth in the use of mediation as a practical, efficient alternative to traditional litigation for conflict resolution. In addition to the retention of self-determination and capability for creative settlements-- not to mention decreased costs-- courts celebrate reduced dockets, as well as increased levels of satisfaction. As such, appellate courts got into the game, initially with the U.S. Eleventh Circuit Court of Appeals, and then a pilot program by Florida's Fifth District Court of Appeal (DCA) over a decade ago. There was also a program at the First DCA which was dismantled for budgetary reasons and other programs that have since gone. However, recent Florida Rules of Appellate Procedure (found beginning at 9.700) now provide the parties with the option to mediate if not already referred to mediation by the appellate court. These procedures account for tolling and other deadlines and deal with appearance and authority of parties at mediation. Today, at the Orange County Bar Association, we had the privilege of listening to Judge Thomas Sculco, Barbara Eagan and Stacy Ford for a CME on the frustration the process can bring about. Though the success rates are still around 35% for cases settling through mediation after a notice of appeal is filed, there are more challenges to the process given the posture post-trial than in cases that have not yet tried. Appellees are difficult to motivate, but there are some tools appellate mediators can use to move the parties' positions beyond discussions involving splits of authority and the proverbial "careful what you wish for" new trial. A hallmark to successful appellate mediation can be as simple as the ability of the parties to avoid precedent and craft a solution to the conflict that is built around their unique interests and needs. With the advent of Certification of Appellate Mediators by the Supreme Court of Florida, more mediation in the DCAs should be taking place. However, it is up to practitioners and dispute resolvers to educate the judiciary and promote the process beyond courts that have traditionally recognized its benefits.