Arbitration & Mediation

You Didn't Mediate "In Good Faith" !!! (and other ills of a lengthy Report of Mediator)

By Christopher B. Hopkins, Esq.

One of the more painful legal cliches is the constant reference at mediation to one side mediating (or not mediating) "in good faith." Although that expression was deemed meaningless back in 1995, it still lingers in the lexicon of mediation participants.

This issue arises from a recent experience where I represented a party who went to mediation, listened to the mediator's orientation, agreed to opposing counsel's agreement to omit presentations, and terminated mediation after receiving the initial offer. The entire experience lasted 2.5 hours. To my shock, the mediator *filed* with the court a report which detailed, blow-by-blow, how long he spent with one side (not the other parties) and who terminated mediation. The suggestion was that one party -- after 2.5 hours? -- did not mediate in good faith.

NO MEDIATING IN GOOD FAITH REQUIREMENT

MEAC Opinion 95-009 specifically states that parties are only required to listen to the mediator’s orientation (95-009A). Even if a party refuses to participate in the presentation phase, it cannot be reported to the court (95-009B). The Opinion specifically states, “There is no penalty for failure to reach an agreement at mediation and the mediator may not suggest otherwise” (95-009D). Rule 95-009E goes on to confirm there is no requirement for parties to mediate in “good faith.” MEAC Opinion 00-003 provides further guidance that a party’s reason for cancellation or postponement of mediation should not be “explained.”

Next, as to the "full" report of the mediator to the court, here's the rule: Florida Rule of Civil Procedure 1.730(a) states, “If the parties do not reach an agreement as to any matter as a result of mediation, the mediator shall report the lack of an agreement to the court without comment or recommendation.”

Thereafter, the statute: Under Florida Statute 44.401 et seq., Mediation Confidentiality and Privilege Act, there is no basis for a mediator report to advise the court of anything other than settlement, impasse or non-attendance. F.S. 44.404 and .405. A mediation participant is barred from betraying – much less publishing – “mediation communications” such as who terminated mediation (a non-verbal communication).

If you choose to make an issue out of striking the Report, watch to make sure, under section 44.405(4)(a), that your client has not waived any confidences nor committed any of the prohibited acts. Under section 44.405(2), a mediation participant is prohibited from testifying about mediation communications. Finally, if a dispute arises, make sure your communications are limited and protected by section 44.405(6).

Finally, the Florida Rules for Certified & Court-Appointed Mediators: Under Rule 10.300, the mediator is responsible to encourage a party’s right to self-determination; to act with impartiality; and to maintain confidences. Rule 10.360 (Confidentiality) is likewise important.

Practice tip: also look at the order referring the matter to mediation and any local rules.

Full post as published by Florida Arbitration Law on July 22, 2009 (boomark / email).