NEW FLORIDA MEDIATION RULE: WHO MUST ATTEND, "CERTIFICATION OF AUTHORITY".

AND ATTENDANCE.  "WE MEAN IT NOW! Unless you agree otherwise."

      Florida Rule of Civil Procedure 1.720 has been changed effective this year.  This is the Rule that regulates Mediation requirements at Court-Ordered Mediations in Florida, things such as requiring the parties' attending representatives to have full settlement authority.  The Rule has also in the past required physical attendance at the ordinary Mediation, but newly effective amendments to the Rule seem on their face to tighten these requirements.

    At first, new Rule 1.720(c) reveals that the Florida Bar Civil Rules Committee has been hijacked by what might best be called "2012 speech."  The new Rule fleshes out the previous requirement that participating party representatives have full settlement authority, by adding a requirement that the representatives be the parties' "final decision makers".  (At least the Committee did not write that the parties had to send their "Deciders".)

    Specifically, Rule 1.720(c) (Download Florida Rules of Civil Procedure 2012 and see page 81 of the attached pdf) now provides:

  (c) Party Representative Having Full Authority to Settle. A "party representative having full authority to settle" shall mean the final decision maker with respect to all issues presented by the case who has the legal capacity to execute a binding settlement agreement on behalf of the party. Nothing herein shall be deemed to require any party or party representative who appears at a mediation conference in compliance with this rule to enter into a settlement agreement.

 That last quoted sentence is also new.  It clearly means that although the defined "final decision makers" have to attend Mediation, they do not have to settle there, so long as they attend.

     The final decision makers now also need to be identified by pleadings filed by the parties' lawyers.  The language of the new Rule provides that lawyers must file (not simply serve) a "certification of authority."  This new pleading shall be a certification, the Rule now provides, that the attending final decision maker has the legal capacity to enter into a settlement agreement at the Mediation which would bind the party in question.

     These new additions are found in Rule 1.720(e) (Download Florida Rules of Civil Procedure 2012 and see again p. 81 of this pdf from the Florida Bar website):

 (e) Certification of Authority. Unless otherwise stipulated by the parties, each party, 10 days prior to appearing at a mediation conference, shall file with the court and serve all parties a written notice identifying the person or persons who will be attending the mediation conference as a party representative or as an insurance carrier representative, and confirming that those persons have the authority required by subdivision (b).

      As is the current practice concerning attendance at Mediations in Florida, the parties' lawyers can agree or the Court can enter an Order that physical attendance is not required in a given case.  Fla. R. Civ. P. 1.720(a).

 There is an old saying that may be approporiate here:  "Everything is changing, but nothing is new."

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Comments

[Sandy Upchurch]

great blog - many lawyers still not aware of this new rule and it is tripping them up. Thanks for reminding all of us...

[San Diego Mediators]

Interesting topic for a blog. I was just surfing the Internet for fun and came upon your website. Fabulous post. Thanks a lot for sharing your thoughts! It is nice to see that some people still put in an effort into managing their websites. I'll be sure to look in from time to time.