Published: June 2022
Author: William J. Cea, Esq.
Pursuant to Rule 10.200 of the Florida Rules for Certified and Court-Appointed Mediators (hereinafter “Rules”), court appointed mediators are mediators selected by the parties or appointed by the court as the mediator in court-ordered mediations. The Rules provide ethical standards of conduct for certified and court-appointed mediators. In my experience, it is the parties who generally select the mediator.
How should the parties select a mediator? Counsel for the parties may look at factors such as availability, professional reputation, subject matter experience, fees and costs, mediation style and the like. Often-times, counsel for the parties may practice in specific areas of the law and have their “go to” mediators that they prefer.
For the most part, the attorneys will circulate a few proposed mediator names and agree on one. I would suggest that counsel take some time to consider whether the proposed mediators are right for the case. While a mediator is not required to have substantive knowledge of the type of case, that is one factor to consider. Other factors that may be more subtle include the mediator’s availability for pre-mediation caucuses, demeanor, and ability to be empathetic, as examples.
On the one hand, the Rules provide that the ultimate decision-making authority rests solely with the parties. On the other hand, the mediator should have the ability to reduce obstacles to communication, assist in the identification of issues and exploration of alternatives, and otherwise act as a facilitator of resolution. For example, as a construction attorney, I may be able to point out impediments to resolution of a case involving alleged defects. It may be the case where parties have expended significant time on liability but not damages. It is helpful to point out potential roadblocks to the attorneys, where possible and without breaching confidentiality, to avoid frustration during mediation. If the defense does not know how much the plaintiff thinks it will take to make repairs, it will create a hurdle to settlement. The Rules permit a mediator to provide information that the mediator is qualified by training or experience to provide, so long as it is consistent with impartiality and preserving self-determination. In other words, impartiality and neutrality are not mutually exclusive with knowledge and experience.
You may want to ask yourself questions, such as: What is the nature of the dispute and who has experience in the area? How much of a factor will demeanor be for the parties? Will the clients benefit from pre-mediation caucus sessions or other conferences to facilitate the process and is the mediator available? Will language or other cultural differences be an issue?
We have all heard attorneys and parties say they want a “strong” or “assertive” mediator, but what does that mean and is that the right approach to selecting a mediator? Perhaps the better question is whether the mediator is the right fit for the case? How will my client feel about the mediator and the process? What are the mediator rates and policies as to minimum fees and/or travel expenses? Does the mediator have the time to commit to parties to the extent necessary?
Another approach is to call prospective mediators to discuss availability and any concerns or priorities that you may have in mind. My presumption is that most mediators would welcome the opportunity to discuss a potential matter, their availability, and what you envision for the process.
The use of alternative dispute resolution procedures is on the rise. Whether mediation is voluntary, required by contract, or court ordered, the pool of qualified mediators has increased along with the demand. My personal bias, if I am allowed to say that, is to locate a mediator that has substantive experience in handling the type of issues and dispute and the availability to commit the time needed to the parties. For the most part these factors weigh more heavily in my mind, however, there are always more unique scenarios where the personality of the parties may require a different type or style of mediator.
The bottom line in my opinion is to expand on the traditional approach of recommending use of the “go to” mediator list and ask some questions, such as those outlined above. You may have a great relationship with a mediator and feel entirely comfortable with the style and costs, but will your client agree?
William J. Cea, Esq. is a Shareholder with Becker & Poliakoff, P.A., and is based in the firm’s West Palm Beach Office. Mr. Cea is a Board Certified Construction Attorney and Certified Circuit Court Mediator. Mr. Cea concentrates his practice in the areas of construction defects litigation, public procurement and mediation. Mr. Cea has lectured for several organizations, on topics such as mediation and construction law, including The Florida Bar, the Florida Association of Public Procurement Officials, Inc., the Construction Owners Association of America, Nova Law School, and the Palm Beach County Bar Association. He may be reached at (561) 820-2888, or via email @ firstname.lastname@example.org.
For additional ADR tips and resources, go to https://www.palmbeachbar.org/alternative-dispute-resolution-committee/