NEW MEDIATION PROCEDURE RULE ALERT
Dec. 01, 2011
New Mediation Procedure Rule Governing Who Must Appear at Mediation Conference Goes Into Effect January 2012.
This Rule Alert is to advise you of a new court rule governing attendance at mediations that will go into effect on January 1, 2012. The Florida Supreme Court recently adopted an amendment to the Mediation Procedure Rules dealing with who must appear at a mediation conference. Before the rule changed, subsection (b) of the Rule required attendance at mediation by a representative of a party having "full authority to settle," but the rule was ambiguous and lacked substance. Subsection (b) now requires essentially the same people to be physically present at the mediation conference, but makes it clear that all of these individuals must be present unless otherwise permitted to be absent by court order or through stipulation of counsel in writing. The new subsection (b) now uses the following language to define who must attend:
1. The party or a party representative having full authority to settle without further consultation; and
2. The party's counsel of record, if any; and
3. A representative of the insurance carrier for any insured party who is not such carrier's outside counsel and who has full authority to settle in an amount up to the amount of the plaintiff's last demand or policy limits, whichever is less, without further consultation.
The remaining changes are where the real differences are made. New subsection (c) attempts to define what is meant by a representative having "full authority to settle," and requires the attendance of the "final decision maker" with respect to all issues in the case, and one who has the legal capacity to bind the party. That means the person attending should not require a telephone call during the proceeding to finalize the settlement negotiations. Also, the new subsection (e) makes a very significant change by requiring each party to file with the court a "Certification of Authority" to be served on opposing parties at least 10 days prior to mediation. The Certification must identify the persons who will be attending the mediation conference as a party representative or insurance carrier representative. It must also confirm that each such person has full authority to settle.
New subsection (f) is the sanctions provision of the rule. It allows a party to seek sanctions from the court against an opposing party for failure to "appear" at mediation within the meaning of the rule. Upon a showing of lack of good cause, the court shall impose sanctions, including mediation fees, attorney's fees and costs. Most notably, it is specifically provided that failure to file the "Certificate of Authority" required by subsection (e) creates a rebuttable presumption of non-appearance by that party.
The new rule goes into effect on January 1, 2012. We recommend that upon scheduling the mediation that the representative who will be physically attending the mediation be determined at that time so that the required certificate can be filed immediately.
For more information, please contact the members listed below, or your Luks & Santaniello contact.
Paul S. Jones
Orlando Partner
Florida Bar Board Certified Civil Trial Attorney
T: 407.540.9170 Ext. 20
E-mail: This email address is being protected from spambots. You need JavaScript enabled to view it.
Daniel J. Santaniello
Managing Partner
Florida Bar Board Certified Civil Trial Attorney
T: 305.921.9792
E-mail: This email address is being protected from spambots. You need JavaScript enabled to view it.
Disclaimer - Please Read.
Luks & Santaniello LLC. is providing this Rule Alert to clients and others to provide current awareness of the new Mediation Procedure Rule governing who must appear at a Mediation Conference. This alert is a brief summary of the laws or regulations highlighted. The communication is for informational purposes only and does not constitute legal or professional advice. Reviewing this information does not create an attorney-client relationship. Sending an e-mail to Luks, Santaniello et al does not establish an attorney-client relationship unless the firm has in fact acknowledged and agreed to the same.
