Back to Basics in 2026

In this age of AI and virtual attendance, it might be time to reflect on what works and has been working for our 3000-plus year-old profession of peacemaking. Despite the advances in tools we utilize, human nature remains unchanged and getting people to a deal is fundamentally the same. Likewise, even with all the platforms to enhance our marketability as mediators, the choice is still made by those who engage us based on trustworthiness and word of mouth. You are only as good as your last mediation some say. Working a case as a neutral is no different in our digital world when it comes down to the basics. Understanding the nub of a dispute is key and recognizing the usual cast of characters to gain rapport with them and get to the signed settlement agreement is paramount in any negotiation, whether virtual or in person. Mediators have more information available to them in this day and age, but that gut feeling from experience and the ability to stay versatile cannot be substituted with artificial intelligence. Parties also have more data than ever, but are seemingly providing less information on the way into a conference than they once did. Having to dig through a docket as a neutral to gain an understanding of the underlying case is fine, but we would still appreciate learning the parties’ positions identifying any overlap in interests from briefs or summaries which might be of better use if exchanged in advance. Saving things for trial went away long ago because there really are so few trials that if a party has a smoking gun, etc., they need to leverage it during the settlement negotiation. Confidentiality that mediation affords must be used to share information for properly evaluating cases in advance of the actual day so that proper authority can be obtained without last minute surprises. Most cases turn on risk tolerance and what a party is willing to do instead of going to court. The courts are where they lose control over the outcome. So even with the overlay of practice going into 2026 and all the coming tech glory, the essentials of getting to resolution endure.

More Civil Rules Proposals Affecting Nonbinding Arb

The Florida Civil Procedure Rules Committee is proposing amendments to conform to changes to the Florida Rules of General Practice and Judicial Administration adopted earlier this year in SC2023-1401, In Re: Amendments to Florida Rules of General Practice and Judicial Administration, including discovery Rule 1.280 to track Federal Rule of Civil Procedure 26(a)(1)(A)(iii) and for consistency between subdivisions. As pertains to ADR, Rule 1.700, Rules Common to Mediation and Arbitration, allows the use of both audio and video communication technology in mediation and arbitration, if the parties do not want to appear in person, which is the default. Under that rule, a judge may enter an order referring all or any part of a case to mediation or arbitration, unless prohibited by law. The parties to any case may agree to mediate or arbitrate any issue at any time. Except as provided in this rule, mediation and arbitration must be conducted in person. The judge may order, or the parties may stipulate, that the mediation or arbitration may be conducted through the use of communication technology. The communication technology must include both audio and video unless all parties stipulate or the judge finds cause. Changes to Rule 1.820, Hearing Procedures for Nonbinding Arbitration, purportedly make it easier to address unintended appellate court interpretation of a recent amendment to this provision (People’s Trust Ins. Co. v.Hernandez, 4D2024-3274) and to better align the rule with existing electronic filing practices. For instance, proposed Rule 1.820 (h) is suggesting the nomenclature be simply a "Request for Trial" thereby elimimating the previous process entitled what used to be called a request for trial de novo and then, more recently, a notice of rejection of arbitration decision. Additionally, if a Request for Trial is filed within 20 days of the service of the arbitration decision, the arbitration decision must not be filed until necessary to enforce the provisions of Section 44.103, Florida Statutes, after the entry of judgment. This change seems inconsistent with the routine filing of decisions under seal until such time as the parties accept an award. The Florida Bar ADR Section is considering filing a comment on the language which may require requesting an extension from the Supreme Court of Florida, but public comments are due by August 18, 2025. See more here-- https://tinyurl.com/5d25e337

It's Mediation er, um rather ADR Week!

Each October, we celebrate Mediation Week which has officially changed to Alternative Dispute Resolution or "ADR Week" in recognition of the importance of all forms of dispute resolution utilized in Florida. Chief Justice of the Florida Supreme Court, Carlos G. Muñiz, recognized October 13-19th as ADR Week in Florida’s courts, and the members of Florida’s Dispute Resolution Center and The Florida Bar ADR Section are excited to take this time to celebrate Florida’s leadership over the past 35 years in successfully utilizing ADR practices. Of course, these practices include mediation, arbitration, parenting coordination, eldercaring coordination, and other restorative and evaluative processes that encourage joint problem solving and effective resolution of disputes outside of the courtroom. All forms of ADR strive to assist parties to resolve their own disputes through self-determination, without the need for a trial. ADR is quite effective and efficient for the attorneys and litigants involved, and it also conserves resources in Florida’s trial and appellate courts. Florida’s skilled ADR practitioners empower individuals, families, schools, and businesses to foster communication, create solutions, and develop lasting solutions to difficult issues. Locally, the ADR Section is celebrating by having a mixer on 10/22 from 5:30-7:30 PM at Eola Wine Company, 430 E. Central Blvd., Orlando. Please RSVP to alicia@rtmediation.com See more here-- https://tinyurl.com/28pmjrpu and here-- https://tinyurl.com/yxv72eky

Comments on Attorneys Signing Settlement Agreements Due 10/1

The Supreme Court of Florida has received a petition from The Florida Bar Civil Rules Committee stemming from a case reported a couple of years ago, Parkland Condominium Association, Inc. v. Henderson, 350 So. 3d 484 (Fla. 2d DCA 2022) where the court did not enforce a deal when the attorneys signed a mediated settlement agreement, but the parties never did. The proposed rule change to Fla. R. Civ. P. 1.730 will no longer require signature of counsel to the parties on mediation settlement agreements and will permit the signature of a party representative (e.g., insurer) if they have full authority to settle. Many cases we see referred to mediation have no Certificates of Authority despite the civil rules saying they must be timely filed before mediation. Mediators compromise their neutrality when they are asked by counsel and their clients to police such compliance. The Civil Rules Committee notes that in reviewing Rule 1.730, it requires, "erroneously," a lawyer's signature on a mediation agreement as Florida law does not otherwise require it. The applicable statute merely requires that a mediated settlement agreement be "signed by the parties and, if required by law, approved by the court." See § 44.404(1)(a), Fla. Stat. Attorneys signing at the end gives a certain gravity to the mediation process and evidences they have read over it and advised the parties signing. I never saw counsel complain in decades of doing this. Comments are due by October 1,2024. Find more on case number SC2024-0774 here--https://tinyurl.com/mrxuxcmj

FL Mediator Rule Comments Due 3/4

The ADR Rules and Policy Committee of The Supreme Court of Florida has proposed revisions to the rules governing certified and court-appointed mediators. While the changes are outlined in the links below and mostly consist of revisions to form such as "shall" being replaced with "must," they do have some substantive changes as requirements in becoming a certified mediator and in the conflict rules, so please consider weighing in on these amendments by March 4th. You may comment by sending your correspondence to the ADR Committee Chair, Honorable Michael S. Orfinger, Seventh Judicial Circuit, Volusia County Courthouse, 101 N. Alabama Avenue, Ste. C-443, DeLand, FL 32724, morfinger@circuit7.org, and the OSCA Staff Liaison to the Committee, Thomas A. David, 500 South Duval Street, Tallahassee, Florida 32399-1927, davidt@flcourts.org, as well as a separate request for oral argument if the person filing the comment wishes to participate in oral argument, which may be scheduled in this case. The ADR Committee then has until March 25th to respond to commments. It is always important to participate in rulemaking as a member of the bar and the ADR profession so that the Committee can get proper feedback for what is actutally going on in the trenches. See more here-- http://tinyurl.com/395rat8k and http://tinyurl.com/eedckhhj

ADR Rules and Policy Needs You!

The Supreme Court of Florida governed Florida Dispute Resolution Center (DRC) Committee on Alternative Dispute Resolution (ADR) Rules and Policy is currently accepting applications for six member appointments to the Committee on ADR Rules and Policy. The Committee on ADR Rules and Policy provides the Supreme Court with recommendations relating to ADR legislation, and all aspects of ADR policy and rules including, but not limited to, ADR practices, mediator certification and renewal requirements, continuing education requirements, and mediation training program requirements. All seats are three year terms that commence on July 1, 2023. Of the appointments, two appointees must be non-lawyer mediators who have been Florida Supreme Court certified for more than five years. The remaining four appointees may be either lawyer mediators or non-lawyer mediators who have been Florida Supreme Court certified for more than five years. All mediator appointees must be Florida Supreme Court certified mediators. All lawyer appointees must be members in good standing of The Florida Bar and have practiced law for a minimum of five years and conducted or attended 15 mediations. Appointments will be made by the Chief Justice of the Supreme Court of Florida. Please see AOSC20-59PDF Download for more information. To be considered for appointment, please submit a letter of interest and current résumé on or before April 25, 2023, to: Florida Dispute Resolution Center Supreme Court Building 500 S. Duval Street Tallahassee, Florida 32399 Fax: (850) 922-9290 mail: DRCmail@flcourts.org

Comments on Remote Rule Changes Due 9/30

The Supreme Court of Florida is extending a public comment period for a rules petition submitted by its COVID-19 Workgroup that is designed to promote greater use of tech due to courts, counsel and parties having experienced great efficiency during the pandemic. Changes to Florida Rule of General Practice and Judicial Administration 2.530, Communications Technology, also impact six other rule sets — Civil Procedure, Criminal Procedure, Probate Rules, Traffic Court, Small Claims, and Appellate Procedure. The amendments focus on ways to permit virtual proceedings under many circumstances, including mediation. The so-called Workgroup on the Continuity of Court Operations and Proceedings During and After COVID-19 found Court and Bar leaders embraced remote technology to navigate the COVID-19 pandemic. After months of deliberation, the members determined that permanent, broader authorization for the remote conduct of court proceedings after the pandemic was warranted based on the positive outcomes and efficiencies being observed during the pandemic. The Workgroup noted significant cost and time savings for litigants, lawyers and other stakeholders, while recognizing that remote proceedings are not appropriate in all circumstances. The proposed amendments to Rule 2.530 still require a court official to consider any objections to the use of remote technology and to ultimately approve all use of communication technology. Chief Judge Munyon of Orlando who chairs the effort said remote mediations are here to stay, along with remote hearings and depositions. “Whether a particular hearing is so complex that it needs to be in person, or the evidence is such that it needs to be in person, will be treated on a case-by-case basis,” she said as reported by The Florida Bar News. This morning, the Executive Council of ADR Section of The Florida Bar contemplated filing a comment in support of the continued use of remote mediation attendance which has proved quite effective in the past eighteen months. See more here-- https://bit.ly/2V1hGll and https://bit.ly/3yL2syZ

Remote CME & Training To Continue

This week, the Supreme Court of Florida amended an administrative order (AO) regarding mediator certification and renewal. This continues the judicial system's periodic update for measures to address the effects on court operations of the Coronavirus Disease 2019 (COVID-19) pandemic. Please note this is an amendment to AOSC20-24 issued in the spring. Some provisions of the order expire on December 31, 2020, and some provisions have been extended until December 31, 2021. The Dispute Resolution Center states in a message to mediators that the AO should be read carefully as all dates listed are correct. Provisions that have been extended through December 31, 2021 include:

1. Training programs are allowed to be conducted online 

2. Certified mediators may complete their CME requirements in any format including non-live programs

3. Rules for Certified and Court-Appointed Mediators suspended as to required points for mentorship (except for county mediator certification, some mentorship activities may still be needed for applicants to reach the required points for certification)  

4. Electronic signatures of mentors in the mediator certification application may be provided; and

5. Deadline extensions granted for approved mediation trainers through December 31, 2021.

See more here-- https://bit.ly/2LR95gi

How to Become a Mediator

Though a forthcoming rules amendment case in The Supreme Court of Florida will likely be decided this year concerning whether certification is required of all mediators in court-filed cases in civil and family courts, certified mediators are currently the only ones subject to ethical rules and other regulations. In order to become certified as a mediator in Florida, there are stringent criteria and training required which is outlined in the link below. I am often asked about this and so the complete information can be found in this convenient publication of the Florida Dispute Resolution Center (DRC). When I became certified in 2001, you had to be a lawyer for five years, just like a judge. Observing mediations is still required and I fulfill my obligation to the profession by providing these opportunities. For each observation required for certification, a trainee must observe an entire session of the type of mediation for which certification is sought, conducted by a certified mediator of the type for which certification is sought. We fill out a form for the observer with the case style, our signature and mediator number. The observation requirement can't be satisfied by any individual who is a party, participant, or representative in the mediation. Candidates for certification may not fulfill the observations before beginning a certified mediation training program. As I'm often asked about whether appellate or pre-suit mediations count, if the case is that which is or would have been the type of mediation for which certification is sought, it may be utilized for observation purposes. Likewise, a federal court mediation conducted by a certified circuit mediator may be utilized to fulfill a circuit mentorship, even though our federal district has its own certification. However, administrative agency mediations conducted under rules and procedures other than that of the state trial courts may not be utilized to fulfill the mentorship requirements. See DRC publication detailing certification process here-- https://bit.ly/2JR4vsi and a link to DRC's annual conference next month in Orlando,"Promoting Mediator Professionalism," here-- https://bit.ly/2tfuJxA

FL Senate Mediation Authority Bill

A new bill for the 2018 Florida legislative session has been introduced requiring that insurance carrier representatives who attend circuit court mediations have specified settlement authority and the ability to immediately consult by specified means with persons having certain additional settlement authority and to be available by telephone. Senate Bill SB 1034 would create Section 44.407, Florida Statutes, which would allow sanctions for insurance carriers that fail to comply with good faith requirements of mediation (a term never truly defined). Additionally, Section 44.408 would compel certain third parties to attend mediation upon the request of the mediator or be available to teleconference, though not required to pay any mediation fees by participating. Also, Section 44.409 would limit information that may be included in the mediator’s report to the court. The new law would allow only the following reporting: (a) A complete agreement was reached (b) A partial agreement was reached (c) No agreement was reached. If a partial agreement was reached which eliminates claims or parties from the litigation, a list of such claims and parties may be provided, but no additional information may be disclosed. If passed, and signed by the governor, this act would take effect July 1, 2018. The Executive Council of The Florida Bar Alternative Dispute Resolution Section on which I serve is looking at this legislative development and will take up the issue at its January, 2018 meeting in Orlando. See proposed language filed here-- http://bit.ly/2zgh9hN and ADR Section info at www.FlaAdr.org

Did Mediation Disrupt Law?

Mediation was once viewed with the same suspicion found in the present disruption of industries and professions. After all, it was boldly called Alternative Dispute Resolution (ADR). Over the past couple of decades in Florida, we have vastly reduced the number of disputes going to trial, such that less than two percent of cases actually go that way. Because of skilled mediators and the embrace of the process by the bench and counsel, parties are participating in less formal court proceedings, having been encouraged to engage in early resolution of disputes in a cost effective manner. Trial courts remain available for the minority of legal matters unable to be resolved through facilitated negotiation. ADR processes offer litigants court-connected opportunities to resolve their disputes without judicial intervention. In Florida, this has resulted in one of the most comprehensive court-connected mediation programs in the country. The Florida Dispute Resolution Center (DRC) was created during the mid-'80s to provide assistance to the courts in developing ADR programs and to conduct education and research on ADR in general. Legislation some thirty years ago resulted in Chapter 44, Florida Statutes, Mediation Alternatives to Judicial Action. This law granted civil trial judges the statutory authority to refer cases to mediation or arbitration, subject to rules and procedures established by the Supreme Court of Florida. The Supreme Court duly established minimum standards and procedures for qualifications, certification, professional conduct and training for mediators and arbitrators who are appointed pursuant to this chapter. Since then, the statute has been revised several times and procedural rules, certification qualifications, ethical standards and continuing education requirements for mediators have been implemented. Currently, rules requiring mediators of filed cases in circuit and family court to be certified are being debated and were recommended by the ADR Section of The Florida Bar as outlined in a recent post on this blog. The ADR Rules & Policy Committee of the Supreme Court of Florida will next consider and likely recommend such changes. See more here-- http://bit.ly/2lTmIN0 and http://bit.ly/2lTiCEj and http://bit.ly/2mrhTbA and http://bit.ly/2mrxyr9

Seminole Mediation

The Seminole Tribe of Florida formally requested mediation in its ongoing dispute with the state over whether it can still offer card games, including Blackjack, in the future. Five years ago, the parties entered into a 20-year compact under the Indian Gaming Regulatory Act. The agreement gave the tribe exclusive rights to operate banked card games at most its facilities for five years. Lawmakers failed to pass a renewal of the compact or a new deal during this spring’s legislative session. Now, without the agreement renewed, the Seminoles find themselves within a 90-day period at which time they must discontinue such games. For five years of exclusivity, the Seminoles pledged to pay Florida a minimum of $1 billion during that period, an amount the tribe has actually exceeded. The tribe and its lawyers contend violation of exclusivity by allowing other gambling operators to operate banked card games. Last week, a mediation request stated that “The Tribe seeks to confirm: (1) its present right to continue offering banked card games for the remaining term of the Compact, which expires in 2030; (2) its right to stop making exclusivity payments to the State under the Compact and to instead make those payments into an escrow account; and (3) its right to expand the locations at which it is permitted to offer banked card games.” Last month, the tribe's chief sent the governor “notice of commencement of compact dispute resolution procedures” which outlined what the tribe considers violations of the agreement that expired without agreement. That letter included a claim the tribe has made for years regarding slot machines that look like Blackjack and Roulette and are authorized by state gambling regulators at non-tribal pari-mutuels. Reportedly, the tribe seeks to add other games, such as Craps and Roulette, as out-of-state casinos look for a foothold in Florida. The tribe is asking that a mediation conference take place within the next month. See stories here-- http://bit.ly/1IAVhrm and http://cbsloc.al/1KwJKNC