Amendments to the Florida Rules for Certified and Court-Appointed Mediators were adopted by the Supreme Court of Florida on September 12, 2024 (hereinafter “Amendments”). (See, Order No. SC2023-1537). The Amendments went into effect on January 1, 2025. Significantly, the Court has provided guidance on what constitutes a “clear conflict of interest”, as well as other clarifications. Mediators and counsel alike should take time to be familiar with the Amendments.

First, Rule 10.340(d) has been added to limit and define what constitutes a clear conflict of interest. These circumstances are as follows: (1) the mediator (or the mediator’s spouse or domestic partner) is related by blood, adoption, or marriage to a person within the third degree of relationship to one of the mediation participants or a participant’s spouse or domestic partner; (2) the mediator previously provided services (other than mediation services) for, or represented one or more of the mediation participants in, the current case or dispute at issue in the mediation; or (3) the mediator is currently providing services (other than mediation services) or representing one or more of the mediation participants.

The instances of clear conflict do not obviate the need for a mediator to evaluate whether he or she believes a conflict exists in a particular matter or “appears” to compromise the mediator’s impartiality. (See, Rule 10.340(a)). Additionally, if a mediator believes a disclosure should be made, that is still required. (See, Rule 10.340(b)). Adopting the clear conflict definition, however, may supersede prior opinions of the Florida Supreme Court’s Mediator Ethics Advisory Committee (“MEAC”).

For example, MEAC Opinion 2008-007 concluded that a mediator who works for a law firm is conflicted out of handling a matter where the firm is adverse to a mediation party, even if the mediator has no involvement in the matter. Further, MEAC Opinion 2012-004 concluded that a “non-waivable conflict” existed if a former law partner represented a mediation party while the mediator was at the law firm. The Amendments make it clear that being a current or former member of a law firm will no longer automatically preclude the mediator from handling the case. Mediators should review prior MEAC opinions against the Amendments going forward.

The Amendments also include changes to Rule 10.360. Confidentiality. In pertinent part, the Amendments include caucus, record keeping, staff confidentiality, and reporting. Significantly, Rule 10.360(b) now provides that a mediator may have a policy that information disclosed during caucus may be disclosed to the other participants unless a party expressly tells the mediator to keep the information confidential. This is a discretionary policy for the mediator.  Mediators should clearly explain whether they have such a policy during the joint session and make sure the parties and participants understand how confidentiality and caucus sessions will be handled. For the time being, I intend to maintain my policy of not disclosing confidential information between caucus rooms unless the party has expressly authorized me to do so.

Next, Rule 10.340(c) provides that a mediator may shred notes or other records “immediately” after the mediation. As to reporting of the outcome, Rule 10.340(e) has been added to reflect that the mediator is obligated to report the outcome to the court, however, the information is limited to reporting: “agreement”, “no agreement”, “partial agreement”, or adjournment for further mediation” without comment or recommendation.

Further, a mediator is prohibited from commenting on whether a party or counsel mediated in good faith.  No other descriptors or modifiers may be used in the mediator report unless the parties have consented to them in writing. Rule 10.340(f) does, however, permit a mediator to identify who was or was not present at the mediation and whether in person or by communication technology. Thus, for those of us that have historically used the phrase “impasse” in our reports, we are no longer permitted to do so.

The Amendments also acknowledge that mediators can have the assistance of clerical staff. The mediator must advise staff that the mediation records are confidential pursuant to the Rules and Florida law. (See, Rule 10.360(d)).

                Finally, the Amendments also acknowledge a mediator’s ability to utilize social networking. Rule 10.340(g) was added and provides: “Mediators may create connections with mediation participants or their counsel on a social networking site (e.g. “friends” on Facebook, “followers” on X, formerly known as Twitter). However, mediators who do so must recognize that such designations may create the appearance of a conflict and may only mediate disputes involving such mediation participants or their counsel” in accordance with the Rules. One suggestion would be to avoid advocating, promoting or siding with legal issues or decisions posted by other connections, as this could create an appearance of partiality.

The above is not intended to be an exhaustive list of all the changes. The amended Rules can are fully set forth in the above-cited Order.

William J. (“Bill”) Cea. Esq.  is a Florida Supreme Court Circuit Certified Mediator and Florida Bar Board-Certified Construction Attorney.  Bill was admitted to practice law in Florida in 1992 and Certified as Mediator in 2011. He may be contacted via email:  [email protected] or phone (954) 494-3239, or via Inkedmediation.com. For additional ADR tips and resources, go to www.palmbeachbar.or/alternative-dispute-resolution-commee .

Published: March 2025

The Florida Supreme Court’s new Differentiated Case Management “time standards” (deadlines) (Rule 2.250(a)(1)(B), Fla. R. Gen. Prac. & Jud. Admin.)  mandate procedures to expedite preparation for trial in civil cases. To facilitate compliance with that rule, our Chief Judge Glenn Kelley has promulgated Administrative Order 3.110.

When a deposition cannot be taken because opposing counsel has filed Motions for Protective Orders invoking privilege, irrelevancy, etc. against the first attorney’s discovery requests, that deposition must await rulings on the motions, which often require hearings.  Given the overloaded dockets of our Circuit Civil Judges, this can take months.  And now, the Board of Governors of the Florida Bar is advocating the promulgation of new discovery rules providing for sanctions for lawyers who do not meet the deadlines!

What to do?   Fortunately, there is an answer. You and opposing counsel can file a Joint Motion for Appointment of a Special Magistrate. Fla. R. Civ. P.  1.490(b) authorizes the court to appoint a Special Magistrate (no longer called a Special Master) “for any particular service required by the court.” (Note: the court may not appoint a Special Magistrate unless the parties agree.)

The Special Magistrate will hold hearings on discovery issues and file his/her Report and Recommendations with the court.  Within 10 days, either party may file Exceptions to any of the recommendations; the opposing party may, within five days after the Exceptions are filed, file an opposing brief or Cross-Exceptions to the Magistrate’s Report.  Often, if the Report and Recommendations contain citations to law supporting each recommendation, and the Exceptions do not negate those citations, the Court will readily adopt them.   A Special Magistrate may help to speed discovery and trial preparation in other ways as well, as by being appointed to conduct an in camera document review, or to preside at depositions to rule on objections to discovery, maintain order, etc.

Any member of the Florida Bar may be appointed to serve as a Special  Magistrate. Many attorneys prefer to use retired Judges, because they know the reputation of each for fairness, intellect and other qualities desired in a Special Magistrate.  “Upon a showing that the appointment is advisable [e.g., where technical expertise is required], a person other than a member of the Bar may be appointed.”  Rule 1.490(b).

If your opposing counsel agrees to use a Special Magistrate, you should file a Joint Motion for appointment of a Special Magistrate, with a proposed Order making the appointment. The Motion should state that the parties agree not only to the appointment of a Special Magistrate, but to the appointment of a specific person named in the motion.  If you cannot agree on who should be appointed, your joint motion should ask the Court to name at least three persons and require the parties to agree on one.  Both counsel should consult with the prospective appointee to ascertain his/her hourly rate, which should be noted in the Order of appointment.

Your proposed Order must specify the matters being referred to the Magistrate.  If the court’s Order of Referral contains issues which you did not consent to being heard by the Special Magistrate,  you must object before the date the Magistrate has set for the hearing. If you object to the referral and your objection is denied, you may petition the Court of Appeal for either a writ of mandamus or a writ of prohibition. If, during the hearing, the Special Magistrate should address something not contained in the order of referral, you should immediately object on the record;  you may then participate in the hearing, and your objection will be honored by the trial court or, if not, by the appellate court.

Sometimes, the mere filing of the Special Magistrate’s Report and Recommendations will result in the parties’ agreeing on resolving the motions before the Court can address them, or even to the case settling.  In one notable case in this Circuit, the attorneys were unable to take crucial depositions because the predicate discovery requests to obtain background information on the deponents were met with objections on the grounds of privilege, irrelevance, etc.  The attorneys were told by the Judge that she could not resolve all the pending discovery disputes for at least 12 or 14 months.  Counsel jointly moved for the appointment of a Special Magistrate, which the Court granted.  The Special Magistrate held two full days of hearings, some with testimony, and issued a detailed 51-page Report and Recommendations.  The case settled before the Judge could address the R&R, which may be seen on the Clerk’s website as: Weiss Research, Inc. v. Finest Known, LLC, et al., Case No. 50 2015 CA 013012, Docket Entry 322.

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Retired Circuit Judge Kenneth D. Stern regularly contributes columns to the ADR Corner, and is a frequent panelist in seminars on Alternative Dispute Resolution.  Since his retirement, Judge Stern has been serving as a Special Magistrate, and as a Mediator and AAA-member Arbitrator.  He may be reached at [email protected]  or at (561) 901-4968.

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For additional ADR tips and resources, go to www.palmbeachbar.org/alternative-dispute-resolution-committee.

Published February 2025

Martinez v. Ring-Cent., Inc., 392 So. 3d 569 (Fla. 4th DCA 2024).

Federal Arbitration Act (FAA) three-month deadline for filing motion to vacate arbitration award did not preempt 90-day deadline in Florida Arbitration Code (FAC).

Eglin Fed. Credit Union v. Baird, 49 Fla. L. Weekly D1795 (Fla. 1st DCA Aug. 28, 2024).  Emailed notice of newly-added arbitration and class-action waiver provisions in member’s agreement with not-for-profit cooperative and financial institution did not provide member with reasonable notice of new terms, such that she did not mutually assent to arbitration; notice was a hyperlink buried in routine monthly account statement email, which indicated only that it would link to cooperative’s quarterly newsletter, email said nothing about changing terms of agreement or that member should have followed the hyperlink for important updates, email made no mention of arbitration or class-action waiver provisions, and even if she had followed the link, newsletter did not provide new terms either.

Patterson v. Melman, 49 Fla. L. Weekly D1895 (Fla. 2d DCA Sept. 13, 2024).  Real estate agents’ refusal to participate in mediation before pursuing arbitration to resolve claims brought by vendors of duplexes after potential purchaser canceled purchase agreement did not constitute waiver of right to arbitrate under terms of listing agreement, even though mediation was purported condition precedent for pursuing arbitration; by demanding arbitration as appropriate forum to resolve dispute, even if prematurely, agents indicated that they wanted to arbitrate dispute, which could not be seen as having acted inconsistently with arbitration right or having affirmatively manifested acceptance of judicial forum, and, unlike waiver, which was irrevocable without consent of opposing parties, agents could cure failure to perform condition precedent by fulfilling it.

Osborne v. Drees Homes of Florida, Inc., 49 Fla. L. Weekly D2151 (Fla. 5th DCA Oct. 25, 2024).  Orders denying motions for arbitration are reviewed de novo, except that factual findings are reviewed for support by competent, substantial evidence.

GMRI, Inc. v. Brautigan, 392 So. 3d 1098 (Fla. 1st DCA 2024).  Arbitration agreement does not need to be signed to satisfy written agreement requirement of Federal Arbitration Act (FAA);  if party moving to compel arbitration cannot show signed agreement to arbitrate exists, court must examine party’s words and conduct to determine whether party assented to agreement.

City of Naples v. Wolff, 391 So. 3d 617, 618 (Fla. 6th DCA 2024).  Trial court was authorized to grant extension of deadline to request trial de novo following issuance of nonbinding arbitration award.

Boca View Condo. Ass’n, Inc. v. Lepselter, 392 So. 3d 144 (Fla. 4th DCA 2024), review denied, No. SC2024-1404, 2024 WL 4903515 (Fla. Nov. 27, 2024).  Attorney’s fees incurred in enforcement of provisions of arbitration award are compensable under statute providing that a party who files a complaint for a trial de novo shall be assessed the other party’s arbitration costs, court costs, and other reasonable costs, including attorney’s fees, incurred after arbitration hearing if judgment upon trial de novo was not more favorable than the arbitration decision.

Lawnwood Med. Ctr., Inc. v. Rouse, 394 So. 3d 51 (Fla. 4th DCA 2024).  Party rejecting arbitrator’s decision and renewing demand for trial must, within 20 days of arbitrator’s decision, file request for trial de novo or motion for trial.

Calvert v. Aleckson, 49 Fla. L. Weekly D2152 (Fla. 5th DCA Oct. 25, 2024).  An appeal taken from an order denying a motion to compel arbitration becomes moot when a new complaint is filed.

1. Shore Med. Ctr. v. Navarro, 389 So. 3d 785 (Fla. 1st DCA 2024). Expert testimony regarding the nature and impact of patient’s stroke before presenting at hospital was admissible in binding damages arbitration.

Donna Greenspan Solomon was the first attorney certified by The Florida Bar as both Business Litigator and Appellate Specialist.  Donna is a Member of the National Academy of Distinguished Neutrals and serves as a Chair on AAA (Commercial Panel) and FINRA arbitrations.  She is a Certified Circuit, Appellate, and Family Mediator and Florida Supreme Court Qualified Arbitrator.  Donna is also a Member of the Florida Supreme Court Committee on Standard Jury Instructions—Contract and Business Cases.  Donna can be reached at (561) 762-9932 or [email protected] or by visiting www.solomonappeals.com. 

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For additional ADR tips and resources, go to www.palmbeachbar.org/alternative-dispute-resolution-committee.

Published: January 2025

Having started practicing law in Florida 35 years ago, when mediation was in its infancy, and now later in my career focusing on serving as a mediator, I recognize that a lot has changed in the world of mediation.

To be sure, the amount of research, scholarship and opinion surrounding mediation has exploded and is ever increasing. This is reflected in everything from law review articles to mediation education to U-Tube videos. The reason is undoubtedly because mediation has proven so successful as an effective dispute resolution method. We should truly commend all those involved in creating, growing and championing the now robust mediation process.

While the boom of new information and resources regarding mediation is clearly a positive development, I suggest we always remember a never-changing fundamental of the mediation process—focusing the parties on thoroughly considering and assessing their alternatives.

Status Quo—Continuing the Litigation Alternative

At some point in time, at least one of the parties believed that filing a suit was the best option (assuming it is not pre-suit mediation).  As a result, the first alternative is staying the course, which is continuing the litigation.  This alternative has risks that the parties probably have already partly considered, such as attorneys’ fees and costs, loss of time, and overall uncertainty.

However, often the parties have not extensively assessed all the risks in continuing the litigation.  This includes both the types of risks and the magnitude of the most obvious risks. Usually, the simple scheduling of mediation starts the parties reassessing the continuing litigation risks.  Even more so, the mediation session should serve to make clearer the continuing litigation risks because the parties will need to compare those risks to alternatives.

As an example, counsel often understand and appreciate the limitations of the judicial system and relief—parties not so much. Continuing the litigation requires compliance with numerous rules of procedure and time deadlines, satisfying each element of a cause of action or affirmative defense, offering expert testimony, establishing legally permissible damage models and remedies, and meeting strict evidentiary requirements for admissible evidence.  Of course, the specifics of each case are unique and prove the inevitable point—the devil is in the details when evaluating continuing the litigation.

Settlement Alternative

Settlement is the alternative to continuing the litigation. It is limitless in its potential scope and variation—largely unrestrained by all the rules governing continuing the litigation. Settlement has the key advantages of bringing certainty to the parties and can be customized in ways that judicial relief is legally incapable.  The flexibility that is possible through settlement is what makes mediation a creative endeavor and a potential settlement so strikingly different than continuing the litigation.

Some common examples of settlement terms that are not possible with continued litigation include payments over time, payments to or from persons not parties in the suit, terms reducing tax consequences, general releases (including pertaining to persons not named in the suit) and non-monetary provisions such as confidentiality and non-disparagement clauses.  The number and type of terms that can be negotiated into a settlement agreement depends on the case and the imaginative resourcefulness of those involved in formulating the settlement.

The Opportunity for Settlement   

It is when the parties understand the risks of continuing the litigation compared to the key advantages of settlement—flexibility of terms and certainty of result—that there is an opportunity for settlement.  But this is only an opportunity.  The actual settlement often comes through the hard work of fashioning the precise terms of settlement—many times in a creative and customized manner.

Although some parties may begrudgingly accept that settlement could be a better alternative than continuing the litigation and other parties may eagerly embrace the opportunity of self-determination through settlement, the essential assessment they must make is the same.  Are the proposed settlement terms better than the risks associated with continuing litigation?  In a mediation where this question is answered in the affirmative, there is settlement.

Conclusion

In emphasizing the importance of comparing alternatives, I do not suggest ignoring the human factors and dynamics that impact the mediation process—many of which create or hinder an overall environment conducive for resolution. However, a fundamental of mediation remains a thorough consideration and assessment of the parties’ alternatives (continuing litigation vs. settlement).

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Hank Jackson has practiced law for 35 years and now serves as a mediator. He is a Florida Supreme Court Certified Civil Circuit Mediator and is Board Certified in Business Litigation by the Florida Bar. He can be reached at 561-271-1878 or [email protected] or visiting http://hankjackonlegal.com. For additional ADR tips and resources, go to www.palmbeachbar.org/alternative-dispute-resolution-committee.

Published: December 2024

With the 2020 pandemic now firmly in the rear-view mirror, let’s assess Zoom’s place in the mediation world. Initially considered a stop gap, a means to let us mediate despite forced distancing, Zoom has proven its value and is here to stay.

Zoom’s cost savings and convenience alone would justify its continued use. But my favorite Zoom feature by far is one we use in virtually every mediation – screen sharing.

Screen sharing is exactly what its name implies – the ability to easily share whatever is on your computer/phone/iPad’s screen with all Zoom participants, on their screens at once.

Every creative writing teacher exhorts students to “show, don’t tell.” The most effective means of proving a point during mediation is to show its evidence onscreen for all to see.

I have seen screen sharing used effectively in a wide variety of commercial mediation presentations – real estate cases sharing aerial photos to show boundary locations; business cases sharing the relevant contract language; construction cases sharing expert reports on allegedly defective manufacturing building products. Although I don’t handle personal injury mediations, I can imagine how effective a short day-in-the-life video could be in a high stakes PI mediation.  Whatever your case is about, you’ve got your evidence all lined up to prove the case in court, right? The other side needs to see it during mediation if you want them to settle.

Sometimes, the opposing side’s lawyer is the one who needs persuading, not their client. Sharing a dispositive appellate case onscreen, with the crucial holding highlighted, can really open their eyes to the strength of your position.

One of the most effective uses I’ve seen in mediation is sharing a damages calculation onscreen. Seeing the numbers can be so much more persuasive than just hearing them. (Show, don’t tell, remember?)

I often do a screen grab of one party’s screen share presentation so I can put it up on screen and discuss during private caucus with the other side (with counsel’s permission, of course).  Zoom even has a nice mark-up feature that lets everyone make notations on a shared image. (A shout out to Donna Greenspan Solomon for this tip!)

You can even show video deposition excerpts onscreen.  Mediation can be eye-opening for parties.  It’s often the first time they are truly confronted with the ammunition the other side has compiled.

We, as lawyers, can sometimes preach to the choir a bit, telling our clients how strong their cases are. This can be counterproductive, making clients overconfident and inflexible – never a good thing in mediation.  A screen share of the other side’s evidence can be the wake up call that restores some objectivity to clients’ case evaluations. This can be just what it takes to bridge the gap and facilitate settlement.

The key to effective mediation screen sharing is, of course, preparation. Just like demonstrative aids in front of a jury, use the screen to tell a story. The mediation may be the last opportunity you have to speak directly to the opposing parties, so make it count. Take the time to create an effective demonstration of the crucial facts in your favor, then put it on the screen. Show them, don’t tell them!

Screen sharing isn’t only an opportunity to prove your case. It also shows the other side that you do your homework. That you’re prepared. That you will be a formidable opponent in front of a jury. All resulting from what you share, and how you share it, on their screens.

And now a few mediation screen share tips:

– Less is more. As with everything else you present as a lawyer, keep your screen share brief.
– When sharing documents, be sure the window you share is large enough that everyone can read the important parts you’re showing them.
– Before sharing your screen, make sure your device’s desktop is clean and neat. And turn off all irrelevant apps. A million disarrayed icons and windows in the background can be so distracting.
– And, please, turn off your device’s notifications. Nobody wants to see that off-color text from your golf buddy pop up!

Zoom offers many mediation benefits.  The key is to make them work to your clients’ advantage. Effective screen sharing can help settle your case.  Use it!

For a wider discussion of Zoom’s advantages, see Al’s May, 2023 ADR Corner article, “To Zoom or Not to Zoom.

After a long career at Shutts & Bowen LLP as a commercial litigator specializing in real estate and general business cases, Mr. LaSorte now acts exclusively as mediator (over 600 cases so far) and expert witness through his own firm, Alfred A. LaSorte, Jr., P.A. d/b/a LaSorte Mediation.  (www.LaSorteMediation.com).  Mr. LaSorte can be reached at (561) 286-7994 and [email protected].  For additional ADR tips and resources, go to https://www.palmbeachbar.org/alternative-dispute-resolution-committee/

Published: November 2024

In April 2023, I was teaching a mediation training when Ft. Lauderdale was hit by an extreme rain and flooding event.[i]  Not a hurricane.  Not a tropical storm.  Not a king tide.  Rain.

The Director of the 17^th Judicial Circuit ADR Department was in my class, getting phone calls from her employees:  “I can’t leave my building.  Everything is under water and only the tops of the cars on the street are visible.”  Two colleagues had homes damaged in the floods.  One had to be rescued from her house in the middle of the night.

Downtown Fort Lauderdale and the Broward courts shut down entirely.  Seeing images of the closed courthouse, I began to think about how climate change affects our legal institutions:  courts, lawyers and litigants.

The summer of 2023 brought more distressing headlines: July 4, 2023 – hottest day on Earth in 100,000 years.  Florida’s coastal waters reached 101 degrees Fahrenheit.  The coral reefs are dying.  The north Atlantic current is collapsing.  We are experiencing the 6^th mass extinction.  The 14^th homeowner’s insurance company leaves Florida.

These events and headlines were overwhelming and terrifying.  Those feelings – being overwhelmed and terrified – are recognizable as symptoms of amygdala hijack, an activated survival instinct that left me feeling frozen, unable to fight or flee.

My mediator’s curiosity helped me get unstuck, to shift from fear and paralysis to constructive action.  While searching for a way to engage more effectively with this complex issue, I learned two concepts: “eco-anxiety” and “eco-grief.”

• “eco-anxiety:  extreme worry about current and future harm to the environment caused by human activity and climate change.”
• “eco-grief:  psychological response to loss caused by environmental destruction or climate change.”

Naming the problem helped me reframe and understand the mental health challenge.  We all experience climate-related disasters (either in person or as witnesses through the media) but our feelings of powerlessness often lead us to push them aside, believing the problem is too vast to solve.

In the language of conflict resolution strategies, we hope to avoid the danger by not moving.  Perhaps it will pass us by and go away.  Perhaps it will solve itself.  Perhaps someone else will fix it.  It only takes the cooler breezes of autumn to put the hot summer aside as a past memory, no longer dangerous.

That was 2023.  Then, in 2024, the “1 in 1,000 years” flooding event happened again.

Modern life makes us blind to the patterns of nature until they intrude on our comfort. Those of us with means can better insulate ourselves or recover from the impacts, but that does not apply to many of our neighbors, who are $400 away from a financial crisis.

Our daily lives are consumed by the urgency of work, family and immediate concerns. The unrelenting cycle of crises, combined with compassion fatigue, leaves us paralyzed and powerless. In the language of mediation, we lose our capacity for self-determination on the bigger issue.

Mediators are agents of hope, experts in breaking impasses and inspiring change. We listen, reframe and engage people in hard conversations and problem-solving. We help people find areas of agreement and envision alternative futures.

In the realm of conflict resolution, “ripeness” refers to a window of opportunity for resolution. The best time to address climate change was twenty years ago, but the second-best time is now. As things stand, substantial and large-scale efforts are required to reduce carbon emissions by 2030 to avert catastrophic consequences.[ii]

Dr. Katharine Hayhoe, a climate scientist and educator, has said: “The most important thing we can do to fight climate change is to talk about it.”[iii]  My own “climate awakening” has led me to commit to these conversations, make individual changes in my life, get educated and connect with others in this endeavor.

Faced with eco-anxiety and eco-grief, we must punch through the paralysis and channel our emotions into action. Climate change is no longer a distant threat.  It’s here and now.  Avoidance will not help us.  This threat will shape the world we leave to future generations.  It will fuel conflict after conflict.  Lawyers and mediators have skills that empower us to be agents of change.

Can we do it?  Yes.  Will we do it?  That answer depends on all of us.

Resources:

Drawdown:  The Most Comprehensive Plan Even Proposed to Reverse Global Warming, by Paul Hawken. (2017)[iv]

2024 Law Firm Climate Accountability Scorecard, Law Students for Climate Change Accountability[v]

“Judge sides with young activists in first-of-its-kind climate change trial in Montana” Associated Press.  Aug. 14, 2023.[vi]

Ana Cristina Maldonado practiced as a full time neutral for 13 years, concentrating her practice in family, dependency, real estate, insurance and commercial cases.  She has mediated over 2,500 mediations and trained over 400 mediators. As Chair of The Florida Bar’s ADR Section (2024-2025) she has championed the diversification of the field of dispute resolution.  Cristina has a B.A. from Amherst College, a M.Sc. in Conflict Resolution from George Mason University and her J.D. from St. Thomas University. She is fluent in Spanish and Portuguese.  Currently, Cristina teaches at Nova Southeastern University Shepard Broad College of Law.  She is the parent of a 6^th grader, future member of the Class of 2031.

For additional ADR tips and resources, go to www.palmbeachbar.org/alternative-dispute-resolution-committee.

[i] https://www.buzzfeed.com/alexalisitza/27-photos-flooding-fort-lauderdale

[ii] https://www.climaterealityproject.org/blog/2030-or-bust-5-key-takeaways-ipcc-report

[iii] https://www.ted.com/talks/katharine_hayhoe_the_most_important_thing_you_can_do_to_fight_climate_change_talk_about_it?subtitle=en

[iv] https://www.amazon.com/Drawdown-Comprehensive-Proposed-Reverse-Warming/dp/0143130447/ref=sr_1_1?adgrpid=1332608657102994&hvadid=83288111967509&hvbmt=be&hvdev=c&hvlocphy=45536&hvnetw=o&hvqmt=e&hvtargid=kwd-83288383171452%3Aloc-190&hydadcr=22535_10434988&keywords=project+drawdown&qid=1697121114&sr=8-1

[v] https://www.ls4ca.org/scorecard

[vi] https://www.npr.org/2023/08/14/1193780700/montana-climate-change-trial-ruling

Written by: Steven Mayans
Printed: October 2024

Opening Statements in Mediation … Are They Necessary?

“Drawing on my fine command of language, I said nothing.”  ― Mark Twain

“Opposing counsel and I have agreed to dispense with opening statements and go directly to caucus.”  A good idea?  Rarely.  Here are four reasons why.

1. You are forfeiting your last, best chance to persuade the other side just as serious settlement negotiations are about to begin.

Counsel should never assume their counterpart has ever presented the merits of your case to their client candidly, comprehensively, and persuasively.  That is your job.  It also may be your only chance to speak directly with their decision-maker without the filter of an attorney.  It can be impactful.  “Gosh,” one dejected party said to me just as a private caucus began, “we sounded so awful the way she said it.”

2. Your mediator does not yet know your case.

Many of the cases coming to mediation have been pending for months, even years.  “We all know this case,” one lawyer knowingly announced as the mediation began.  “No need for opening statements.”  “Scusi?” I wanted to protest.  What about me?  My first exposure to the case was that day.  Even where mediation statements are provided (very helpful and always welcome), a mediator cannot possibly have the same understanding of the factual disputes and legal issues as counsel.  An opening statement can be invaluable to a mediator’s effectiveness in assisting with a resolution of the case.

3. You force the mediator to present each side’s case in caucus instead of mediating between them.

“Oh, they’re not claiming that,” one party confidently told me early in a caucus.  (Actually, having read your mediation summary, I know that you are.)  “But they have no chance of winning on the issue.”  (I explain why you believe you do.)  Then, inevitably, comes the question “whose side are you on anyway?”  This is an unhealthy settlement dynamic that could have been avoided with an effective opening statement.

4. The mediator is left with only nonusable confidential information when negotiating with the other side.

I have read many cogent, well-written mediation summaries.  Instead of sharing the lawyer’s persuasive work product with opposing counsel — which, even better, would likely have been forwarded, without comment, to the opposing client — it is inexplicably kept confidential.  Worse, I am admonished under no circumstances to communicate any portion of its contents with the other side.  If no opening statements are given, what information may I appropriately share and what arguments may I safely raise while caucusing with your opponent (who may have a deeply flawed understanding of your case)?

The bottom line is that a mediation opening statement should be given, except in the rarest of cases.  To paraphrase Twain, draw on your fine command of language, and say something!

Steven A. Mayans is a state and federal court mediator, a diplomat with the Florida Academy of Professional Mediators, and a member of the National Roster (both mediation and arbitration panels) of the American Arbitration Association. For additional ADR tips and resources, go to www.palmbeachbar.org/alternative-dispute-resolution-committee.

Published: September 2024
Written by: Ryan M. McCarthy, Esq. 

Mediation has long been a critical part of litigation for cases proceeding through Florida’s state courts. However, the Florida Supreme Court’s recent amendments to the Florida Rules of Civil Procedure underscore the importance of mediation in a changing legal landscape. The amendments, which are scheduled to take effect on January 1, 2025 (subject to comments to be made on or before August 6, 2024),[1] will more closely align Florida’s Rules with the Federal Rules, particularly when it comes to the imposition of deadlines. As such, exploring avenues for resolution will be top of mind for practitioners, as they litigate under strict case management orders and with heightened obligations for discovery and summary judgment.

The days of allowing a case to linger are gone. Practitioners will be forced to seek creative solutions to resolve cases at all stages, from early on in litigation (before substantial fees are incurred) until later points, such as the filing date of a pivotal summary-judgment motion.

Litigators, in all practice areas, have always been cognizant of the need to resolve cases expeditiously. But compound Florida’s Rule changes with increasingly cost-conscious clients, along with the advent of technology to streamline the mediation process (i.e. Zoom etc.), and it is clear to see why mediation will be catapulted to among the top case-handling considerations.

Below is an outline of some of Florida’s Rule changes that will most dramatically impact mediation, with corresponding comments:

Rule 1.200 (Case Management; Pretrial Procedure): Cases will be assigned a complex, general, or streamlined track. Deadlines in case management orders will be “strictly enforced unless changed by court order.” Completion of alternative dispute resolution will be a key deadline in streamlined and general cases. This Rule will place more attention on case management conferences with an expectation that lawyers will be prepared “on the pending matters in the case, be prepared to make decisions about future progress and conduct of the case and have authority to make representations to the court and enter into binding agreements concerning motions, issues, and scheduling.” These obligations will ensure lawyers are more prepared for mediation.

Rule 1.202 (Conferral Prior to Filing Motions): This Rule will require a movant to confer with opposing counsel, in a good-faith effort, to resolve issues raised in a motion and to certify in the motion that such conferral was completed. While some motions are exempt (such as a motion to dismiss and/or a motion for summary judgment), this Rule will compel lawyers to address and discuss cases more often. Lawyers will be required to continuously evaluate the strengths and weaknesses of their matter as motions are filed. More frequent conferral should bring about better preparation for mediation. Mediators should be ready to address pending motions from both sides.

Rule 1.280 (General Provisions Governing Discovery): This Rule will require litigants to make initial disclosures and to supplement disclosures/discovery responses. Early on, lawyers will be apprised of individuals likely to have discoverable information, documents (or descriptions) that may be used to support claims or defenses, computation of damages, and copies of insurance policies or agreements. Supplementation will be necessary if ordered by the court or if a party “learns that in some material respect the disclosure or response is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing.” Initial discovery will allow parties to meaningfully engage in mediation earlier as both sides will be forced to “show their hand.” With more information available, parties will be in a better position to evaluate the merits of claims and defenses while a case is young.

Rule 1.460 (Motions to Continue Trial): This Rule will provide “[m]otions to continue trial are disfavored and should rarely be granted and then only upon good cause shown. Successive continuances are highly disfavored.” Limited continuances should eliminate a fair amount of posturing. Lawyers will be obliged to have more frequent and frank discussions with clients about the chances of prevailing on summary judgment and/or at trial, which will keep expectations realistic at mediation. And realistic expectations lead to a more productive mediation.

Rule 1.510 (Summary Judgment): This Rule will mandate that within 60 days after service of a summary-judgment motion, “the nonmovant must serve a response that includes the nonmovant’s supporting factual position[.]” With legal positions surfacing quickly, lawyers will be engaging in a cost/benefit analysis, involving additional litigation activity versus advantages of settlement. Summary-judgment motions will be a hot topic for mediation, because of the tight time frame for a response.

In sum, the referenced Rule changes in the Sunshine State will shine a brighter light on mediation. More than ever before, mediation will play a vital role in managing the litigation in Florida’s state courts.

Ryan McCarthy is a partner at LaBovick Law Group. For additional ADR tips and resources, go to www.Palmbeachbar.org/alternative-dispute-resolution-committee.

[1] This article was written in July 2024 for publication in the September 2024 ADR Corner. While major changes to the referenced Rules are unlikely, the final versions of the Rules should be monitored through the effective date of January 1, 2025.

Published: JULY/AUGUST 2024

Writen by: DONNA GREENSPAN SOLOMON

Walsh Group v. Zion Jacksonville, LLC, 379 So. 3d 571 (Fla. 5th DCA 2024).  Claims for littering, trespass, organized fraud, and gross negligence were subject to contract’s broad arbitration clause.

Flying Panda Florida, LLC v. Rutherford, 380 So. 3d 529 (Fla. 5th DCA 2024).  It was the arbitrator’s role, not the trial court’s, to consider whether the exculpatory clause was valid.

Yederlinic v. Heather Hill Nursing Ctr., LLC, 49 Fla. L. Weekly D875 (Fla. 2d DCA Apr. 19, 2024).  Individual who signed arbitration provision was not acting as resident’s attorney-in-fact pursuant to a durable power of attorney, and thus, resident’s estate was not required to arbitrate negligence claim.

United States Fire Ins. Co. v. Am. Walks at Port St. Lucie, LLC, 4D2023-1784, 2024 WL 2178633 (Fla. 4th DCA May 15, 2024).  Ordering arbitration was improper before arbitrator determined that developer had validly terminated prime contract and thus had validly accepted assignment of master subcontract containing arbitration agreement.

Palacios v. Lawson, 381 So. 3d 623 (Fla. 4th DCA 2024).  Patient and company exercised their freedom to contract around Medical Malpractice Act (MMA) by agreeing to arbitrate medical-malpractice claims entirely outside MMA’s framework, and thus arbitration agreement was not void as against public policy.

Venn Therapeutics, LLC v. CAC Pharma Investments, LLC, 382 So. 3d 6 (Fla. 2d DCA 2024).  Arbitration clauses that include in their scope all claims or controversies arising out of the subject contract limit arbitration to claims having some direct relation to the terms and provisions of the contract.

Pro-Play Games, LLC v. Roger, 3D23-1458, 2024 WL 1423882 (Fla. 3d DCA Apr. 3, 2024).  Test for determining arbitrability of particular claim under broad arbitration provision is whether significant relationship exists between claim and agreement containing arbitration clause, regardless of legal label attached to dispute.

Paquin v. Campbell, 378 So. 3d 686 (Fla. 5th DCA 2024).  Equitable estoppel did not compel heirs, as non-signatories to decedent’s contracts, to arbitrate tort claims against decedent’s investment advisor.

Florida Roads Trucking, LLC v. Zion Jacksonville, LLC, 5D23-2094, 2024 WL 1594574 (Fla. 5th DCA Apr. 12, 2024).  Seller’s claims against haulers for litter and trespass were beyond scope of arbitration clause in contract of sale between buyer and seller, regarding sand used for construction; contract provided for arbitration only of controversies and claims between seller and buyer or seller and buyer’s surety, haulers were neither party to the contract nor buyer’s surety, haulers were not buyer’s officers or agents, and haulers did not receive any rights or incur any obligations under the contract.

OptumRx v. King’s Drugs, Inc., 49 Fla. L. Weekly D848 (Fla. 2d DCA Apr. 17, 2024).  California venue provision for arbitration proceedings did not preclude Florida state court from considering petitions to compel arbitration.

Zahav Refi LLC v. White Hawk Asset Mgmt., Inc., 49 Fla. L. Weekly D852 (Fla. 2d DCA Apr. 17, 2024).  A motion to confirm an arbitration award is not mandatory because the arbitration award becomes final once the arbitrator releases his finding.

Sch. Bd. of Broward Cnty. v. Smith, 384 So. 3d 248 (Fla. 4th DCA 2024).  Even though parties agree under collective bargaining agreement that arbitrator’s award would be “final and binding” on them, such award is not self-executing and must be confirmed by court of competent jurisdiction to be enforceable; while standard of review is highly deferential to arbitrator’s findings and arbitration awards can be confirmed even if legally incorrect, such award must nonetheless stay within bounds of statute governing when arbitration award can be vacated.

Fisten v. Brown, 49 Fla. L. Weekly D398 (Fla. 3d DCA Feb. 21, 2024).  Trial court had no discretion to do anything except confirm award once it had denied motion to vacate and there was no other pending motion.

Telesco Constr. Mgmt., Inc. v. Nat’l Concrete Pres., Inc., 49 Fla. L. Weekly D514 (Fla. 3d DCA Mar. 6, 2024).  Compelling production of merits discovery prior to determining arbitrability departed from the essential requirements of law, warranting certiorari relief.

Michaels v. Johnson, 49 Fla. L. Weekly D971 (Fla. 4th DCA May 8, 2024).  Plaintiff was denied due process where trial court sua sponte dismissed her action as a sanction for failure to comply with an order of referral to arbitration.

Donna Greenspan Solomon was the first attorney certified by The Florida Bar as both Business Litigator and Appellate Specialist.  Donna is a Member of the National Academy of Distinguished Neutrals and serves as a Chair on AAA (Commercial Panel) and FINRA arbitrations.  She is a Certified Circuit, Appellate, and Family Mediator and Florida Supreme Court Qualified Arbitrator.  Donna is also a Member of the Florida Supreme Court Committee on Standard Jury Instructions—Contract and Business Cases.  Donna can be reached at (561) 762-9932 or [email protected] or by visiting www.solomonappeals.com. 

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For additional ADR tips and resources, go to www.palmbeachbar.org/alternative-dispute-resolution-committee.

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.