Written by: Judge Lucy Chernow Brown (Ret.)

Published: June 2024

My life as a discovery mediator began with a court order appointing me to conduct a mediation among the parties on all disputed discovery issues in a complex, multiparty case. At the time, I had not heard of the term “discovery mediator.” The order was issued in Florida’s Fifteenth Judicial Circuit by Hon. Ed Artau, now an appellate judge on the Fourth District Court of Appeal. He ordered that no discovery matter in the case be set for a court hearing unless it had first been mediated. To give the order teeth, and to start the ball rolling, he also canceled all discovery hearings already on his calendar in this case, pending mediation.

The Court’s Process
The court required a mediator’s report for every mediation session, summarizing the date, time and subject of the specific dispute; listing the parties and/or counsel in attendance; and noting whether there was agreement or impasse. In this case, I issued 21 mediator’s reports to the court. All but one of the reports were accompanied by agreed order(s) resulting from mediation. Many sessions lasted for several hours; some required a full day. Every agreed order was minutely reviewed and ultimately initialed on every single page by all counsel involved. The attorneys—at first unable to civilly discuss the disputed issues—reached resolutions with the help of a neutral mediator who had the time to listen to, read and focus on their disputes. As I became more familiar with the details, the parties agreed and consented to have the court also name me as a special magistrate for the purpose of conducting all necessary in camera inspections.

Confidentiality: A Key Advantage

The confidentiality element of the mediation process was a major advantage in working out agreements among the parties. As the discovery mediator, I quickly learned the real interests of the parties behind their pending discovery requests and/or objections in private, confidential caucuses. Once I uncovered these, compromises became easier. After several long sessions, there were fewer confidential caucuses and more joint sessions as the parties became more comfortable with the process, the mediator and each other. Another element that encouraged compromise was the positive environment provided by the law firm hosting the sessions. Lunches, conference rooms and support staff for preparing the sometimes-lengthy proposed agreed orders helped everyone work together toward a common goal.

Positive Outcomes
The discovery mediation was successful, according to the judge and the attorneys; I thought so too. Why is it relevant now? And how can you explore this option for your cases?
With the recent fast-track mandate of the Florida Supreme Court, local administrative orders requiring efficient case management and the resulting difficulty getting hearing time, discovery mediation can be a good alternative to getting bogged down in discovery litigation. It is a particularly good alternative for complex cases in which you are being stonewalled. And, yes, there is authority for the court’s referral of discovery matters to mediation—even without all parties’ consent.

Legal Authority
Most of us are familiar with the special magistrate option for discovery matters under Rule 1.490 of the Florida Rules of Civil Procedure, which requires the consent of all parties. With an uncooperative opposing counsel, the court has no power to make the appointment under this rule.
Does the court nevertheless have the power to compel discovery mediation without the agreement of the parties? Yes. And there is legal authority to support this. Florida Rule of Civil Procedure 1.700(a) authorizes a judge to “enter an order referring all or any part of a contested civil matter to mediation or arbitration.” This allows a judge to refer discovery matters to mediation, even without all parties’ consent.

Cost Considerations
Attorneys getting together, face-to-face, with an experienced neutral mediator in a conducive environment with the benefit of confidentiality were able to quickly to articulate and narrow issues, and then reach agreements to resolve their disputes. But was it more expensive for the parties? At least one experienced attorney involved thinks that the cost of the mediator’s time was less than what her attorneys’ fees would have been to prepare of all necessary legal briefs for court hearings.

Embracing an Innovative Approach
Most litigators have experienced the snowballing craziness that creates a discovery nightmare, bogging down a case. Being a discovery mediator was eye-opening. This innovative approach demands serious consideration for the cases that keep you up at night.

Judge Lucy Chernow Brown (Ret.) served Palm Beach County for 24 years as a Circuit Judge, presiding over thousands of complex cases of all types. Judge Brown now serves as a mediator, arbitrator and special magistrate. A Florida Supreme Court-certified Civil Circuit Mediator, Judge Brown is a neutral with JAMS, the international ADR provider. She may be contacted at: [email protected].

This article is posted at: www.jamsadr.com/blog/alternative-dispute-resolution, and at Law.com/ALM. It is printed here with permission from JAMS.
For additional ADR tips and resources, go to https://www.palmbeachcountybar.org/alternative-dispute-resolution-committee.

By:  Tami L. Augen Rhodes

Published: May 2024

Knock, knock…

Who’s there?

Client…

Client who?

Your client calling to say that you need to let the court know the children were brought home ten minutes late; my co-parent did not discuss our child’s soccer game with me; my co-parent gave our child chicken even after I reminded co-parent that our child needs more iron from red meat;  my co-parent could not pick up our child even though co-parent knew that I had an important work meeting and I always accommodate co-parent; and so on and so on.

While most stories that start with “knock, knock” are jokes, what I have described is no laughing matter:  it is pervasive and harming children.  The Journal of Child and Adolescent Trauma teaches, “[p]arental conflicts consistently predict negative outcomes for children.”  (V.15(3); Sept. 2022).  Why, then, is Parenting Coordination (“PC”)[1] so underutilized?

Family Law practitioners typically consider the one-and-done model of ADR – mediation.  When a Family Law case involves highly contested or high conflict children’s issues, often a Guardian Ad Litem or Social Investigation is used in litigation.  This author suggests Courts and counsel consider early PC involvement.

Florida Statutes Section 61.125 (2) states, “[t]he purpose of parenting coordination is to provide a child-focused alternative dispute resolution process whereby a parenting coordinator assists the parents in creating or implementing a parenting plan by facilitating the resolution of disputes between the parents by providing education, making recommendations, and, with the prior approval of the parents and the court, making limited decisions within the scope of the court’s order of referral.”

Unlike most ADR processes, an initial PC appointment can be for up to twenty-four months.  The PC can assist parents in learning communication skills for effective co-parenting; in developing a parenting plan; in implementing a parenting plan; in resolving disputes; and more.  When the PC is involved early on, the PC can help to educate the parents regarding co-parenting and assist the parents with creating a Parenting Plan.  Research shows greater compliance with Parenting Plans created by the parties versus a Court Ordered Parenting Plan.  Additionally, the PC can teach skills and put tools in place designed to minimize and effectively address conflict.  Moreover, the Court’s Order of Referral to PC can, and should, provide the PC with specific decision-making authority over non-substantive matters.  Importantly, the PC should have the ability to assist the family, and the children, in being able to lead a functioning life.  When parents need to resort to filing motions and waiting for an evidentiary hearing, a parenting dispute can take approximately three to nine months before there is a Judicial determination.  When a PC has non-substantive decision-making abilities, the parents and child(ren) have immediate access to effective ADR, which is child focused, and which enables the child to have immediate decisions to increase normal childhood functioning.  By way of example, waiting for a  Judicial determination regarding a school field trip puts the child at risk for the trip having come and gone by the time the parents are in front of a Judge as opposed to a PC who utilizes skills to assist the parents in reaching a joint decision and, when there is a stalemate, is able to make a limited decision in a timely manner.

Chief Magistrate Serpil Ergun of the Cuyahoga County Domestic Relations Court in Cleveland, Ohio undertook an extensive study on the effectiveness of PCs.  The final report as of May 2016, documents, “[t]here was a significant decrease in the number of motions filed, scheduled court events, and trials in the two years after appointment of a coordinator…. Motions decreased 56%. Court events decreased 58%. Trials decreased 32%. The average number of motions per case declined from 22.87 to 10.06.”

PCs are uniquely qualified to assist the Court: specifically, a PC must be a licensed mental health professional; a physician; a mediator with at least a master’s degree in a mental health field; or a member in good standing of The Florida Bar.  Additionally, PCs must have three years of post-licensure/certification practice; be a Florida Supreme Court Certified Mediator; complete a twenty-four-hour PC training; and comply with continuing PC education requirements and reporting.  The PC can meet with parents, children, collateral sources, schools, therapists, and others.  The PC can also recommend additional services, such as individual therapy for a parent.

Ultimately, PCs help to keep cases from excessive Court usage; teach parents skills to enhance co-parenting; and maintain the focus on the children so they can grow up free from the detrimental effects of toxic parenting and thrive based upon healthy co-parenting.

Tami L. Augen Rhodes has practiced Marital and Family Law for 25 years.  She is the Founder and President of the Palm Beach Academy of Collaborative Professionals; a Guardian Ad Litem; a Florida Supreme Court Certified Family Mediator; and a Qualified Parenting Coordinator for. For additional ADR tips and resources, go to www.palmbeachbar.org/alternative-dispute-resolution-committee

[1] PC shall refer to “Parenting Coordinator” or the “Parenting Coordination ADR Process”, based upon context.