Published October 2017
By William J. Cea
There are significant differences between the rules that apply to certified and court-appointed mediators, and non-certified mediators. In fact, that’s the point. The rules don’t apply to non-certified/non- court appointed mediators. When choosing a mediator, consideration should be given to the differences. As demonstrated by a robust debate during the ADR Session at the recent Bench Bar Conference, there are different points of view on the subject.
The Rules for Certified and Court-Appointed Mediators are found at Section 10.100 et. seq. (“Rules”). Generally, the Rules provide for Mediator Qualifications, Standards of Professional Conduct, and Discipline. “Certified mediator” means the mediator has been certified by the Florida Supreme Court, after completing an initial mandatory training, which includes formal instruction in ADR techniques, and ethics, as well as observation of mediation sessions conducted by experienced certified mediators. Certified mediators are also required to fulfill continuing education requirements. This training includes areas such as diversity, domestic violence, and ethics. Applications for re-certification must also be submitted to the Florida Supreme Court through the Dispute Resolution Center on a bi-annual basis. The Rules provide for different areas of certification, including: County Court, Family, Circuit Court, Dependency, and Appellate.
Generally, the Rules prohibit certified or court appointed mediators from mediating a matter where the mediator has a clear conflict, coercing the parties, or giving legal advice. The Rules further mandate impartiality and neutrality on the part of the mediator. The parties’ right to self-determination is a fundamental concept provided by the Rules. Accordingly, when selecting a mediator, consideration should be given to the type of case and the parties. If your case involves parties who would be offended by being “strong armed” or by an apparent bias towards one side’s position, then you should select a certified mediator. There is a proposal to require use of a certified mediator for any pending litigation, however, it is unclear whether that will be adopted.
Rule 10.310, Self-Determination, is one that I recommend reading to better understand the role of a certified or court appointed mediator. Rule 10.310 is clearly intended to ensure that the parties are the ultimate decision makers. The Committee Notes, in pertinent part, state: “Mediation is a process to facilitate consensual agreement between the parties in conflict and to assist them in voluntarily resolving their dispute….While mediation techniques and practice styles may vary from mediator to mediator and mediation to mediation, a line is crossed and ethical standards are violated when any conduct of the mediator serves to compromise the parties’ basic right to agree or not to agree.” [Emphasis added].
The above does not mean that the mediator should simply go back and forth between rooms as a messenger. A good mediator can balance the rights of the parties and the process, while at the same time assisting the parties by identifying obstacles that need to be overcome and opportunities for settlement. On the other hand, some attorneys with sophisticated clients may want more of a substantive expert who can offer opinions and exert greater influence on the outcome. The participants should, however, understand that also means that a non-certified mediator is not subject to the Rules or disciplinary action for misconduct.
Thus, when selecting a mediator, counsel should give serious consideration to the differences between certified and non-certified mediators, and the type of mediator that best fits the case. If your client would be frustrated or offended by a mediator taking sides or coercing a settlement, then selecting a certified mediator will reduce the chances of such frustration. We are fortunate in Florida to have a set of rules, ethical standards and regulation of certified mediators. The mandatory training, continuing legal education and re-certification requirements are all intended to facilitate a fair and impartial process, aimed at giving the parties an opportunity to craft a settlement free of undue influence and pressure.