Published: July/August 2023
Written by: David Lucey
Zoom and Other Remote Technologies for Mediation
Since the start of the pandemic many mediators have become accustomed to conducting mediation remotely. Opinions differ about the effectiveness of remote mediations as opposed to in-person depositions, but remote depositions certainly save time and money for all concerned.
Effective October 1, 2022, under Florida Rule 1.700(a), all mediations in a State Court case will be in person unless the parties stipulate to appearing remotely, or if there is a motion by a party or by the court itself to allow remote mediation. See Fl. Sup. Ct. Admin. Order 21-990 that amended Rule 1.700.
All notices of mediation should specify if the mediation is in person or remote. If the mediation is remote the Notice of Mediation should state that all parties have stipulated or that it has been so ordered by the Court. The Notice of Mediation should NOT include the Zoom information for security purposes. Rather, the mediator should send that information to the participants by separate email.
Mediators should also review Florida Rule of Civil Procedure 1.730. That rule allows signatures to be manual, by fax, electronic and in counterparts; rather helpful in remote mediation. Rule 1.730 ( c) provides that a party cannot object to a mediated agreement on the grounds that mediation was conducted remotely. Nonetheless, I suggest that a mediation agreement include standard language stating that all parties agreed to remote mediation and that they had access to advice of counsel or the opportunity to consult counsel.
Unlike the Florida Rules of Civil Procedure, the United States District Court for the Southern District of Florida takes the opposite approach. Under Local Rule 16.2(a) the parties decide if they want to mediate in person or remotely and, if they cannot agree, the mediation shall be by video conference. That Local Rule also provides that if there is not an agreement the mediator’s report must state if the mediation was in person or by video conference. Please note that Local Rule 16.2 (e) requires participants to appear by BOTH video and audio; just calling in on the phone will not suffice.
Important Proposed Revisions to Rule 10.340
All mediators should review the proposed changes to Rule 10.340 available in full at;
This website provides an overview of some modifications to Rule 10.340 that the Committee on ADR Rules has proposed but that are not enacted.
The proposed changes would expand and provide specific definitions and examples of “Clear Conflict of Interest” i.e. conflicts that cannot be waived. Specific prohibitions include;
It is a clear conflict if the mediator, the mediator’s spouse or domestic partner is related by blood, adoption or marriage within the third degree of relationship to one of the mediation participants or a participant’s spouse or domestic partner;
The Mediator is prohibited from serving in any matter where the mediator has ever previously provided non-mediation services for or represented one of the mediation participants in the matter at issue or the mediator is currently providing non-mediation services or representing any mediation participant.
The above language proposal does not define “mediation participants”. However, Florida Statutes 44.403 (2) and (3) define “Mediation participant” and “mediation party” to only include parties to a lawsuit, and not counsel for a party. Therefore, mediators should remain free to receive repeat engagements from law firms and law firms remain free to repeatedly engage mediators who they trust.
The lack of any time limit in the proposal would mean that if a mediator had ever worked directly for a company such as State Farm Insurance, in any capacity, he/she may be prohibited from ever serving as a mediator in any matter where one of the parties is State Farm itself, and could be interpreted to prohibit the mediator from serving in a case where State Farm is the insurance company for any party. However, if the mediator had represented State Farm or a State Farm insured purely as an attorney, it appears that the prohibition would not apply. If this proposal is ever passed, we can expect the state courts, and likely the Florida Supreme Court, to clarify these questions.
In addition to the obvious need to keep current on rule changes and updates, all mediators should be sure to include standard language in their retainer agreements, notices of mediation and draft mediation agreements that confirm that the mediator has disclosed all applicable rules to the participants, that the participants are aware of those rules, and that the mediator and participants have all acted in accordance with such rules. A few hours of careful drafting before a mediation engagement can avoid an enormous amount of trouble later.
David Lucey has been a member of the Florida bar since 1990 and a Florida Supreme Court certified circuit court mediator since 2009. Mr. Lucey’s practice, as both Attorney and Mediator, encompasses multiple areas, including civil, litigation, family law, and condominium/homeowners’ association law. Mr. Lucey is available at 561-632-6921 or DCLLAW678@gmail.com.
For additional ADR tips and resources, go to www.palmbeachbar.org/alternative-dispute-resolution-committee.