Florida Mediator Advises: Just Show Up, Good Faith Not Required

As a member of The Florida Bar since 1994, Sandy Upchurch has a broad base of litigation experience that allows her to effectively mediate a wide range of disputes. To schedule a mediation with Sandy, please visit our online scheduling page or call her case manager, Mary Lou Struble, at 800-264-2622.



Question:

What is the best way to handle a situation where it appears the opposing party is not mediating in good faith?

Sandy Says:

Mediating “in good faith” is a myth in state court cases in Florida and a concept that really does not exist, believe it or not. If you research the Mediators Ethics Advisory Committee opinions at the Florida State Courts Center for Dispute Resolution you will find many opinions that state that all that is required of any party is physically appearing at the mediation and then physically sitting through the mediator's opening comments (not even sitting through the opposing party’s opening statements is required).

I imagine the reason for this is that “good faith” is such a subjective standard that no mediator should be required to identify it and label it as such because it is different things for different parties. For example, if an insurance adjustor and a claimant have wildly different views of the value of a case, does that mean the party with the lower valuation is participating in “bad faith?”

I think perhaps a better question is what does it take for a mediator to report that someone did not appear at mediation? A mediator can do that if the person actually does not show up or if the party refuses to sit through the mediator’s opening comments. That’s really it.

There was a recent rule change – and amendment to Rule of Civil Procedure 1.720(b). This rule change sets forth who must be at mediation and with what authority. The rule also provides that a Certificate of Authority be filed with the court at least 10 days prior to mediation. If that certificate is not filed or if a person without authority, in your opinion, shows up at mediation, the remedy is to file a motion with the court and seek sanctions of some sort or a ruling from the court on the issue. The intent of the rule change is to further remove the mediator from these sorts of determinations that oftentimes have no truly right answer.

What do you say???