Published: June 2018
By: William J. Cea
To settle or not to settle? Only the parties can answer that question at mediation. For mediation, voluntary and informed decision making or “self-determination” is the paramount consideration. The Florida Rules for Certified and Court-Appointed Mediators reflect the importance of preserving the parties’ right of self-determination throughout the mediation process. Understanding this principle will help both mediators and attorneys prepare and participate in the process.
Rule 10.310, Self-Determination, states in pertinent part: “(a) Decision-Making. Decisions made during a mediation are to be made by the parties. A mediator shall not make substantive decisions for any party. A mediator is responsible for assisting the parties in reaching informed and voluntary decisions while protecting their right of self-determination.” The discussion in this article presumes that the parties have the capacity. It is worth noting, however, that a mediator shall cancel or postpone a mediation if a party is unable to feely exercise self-determination. See, Rule10.310(d).
So how can a mediator safeguard the process and rights of self-determination? First, the mediation should afford enough time for the parties to make a meaningful decision. Rule 10.430, for example, requires the mediator to “schedule a mediation in a manner that provides adequate time for the parties to fully exercise their right of self-determination.” Clearly, not affording sufficient time or scheduling the mediation later in the day could set the parties up for added pressure and duress.
Because of this, I generally prefer mediation to commence in the morning. Further, even if the parties believe that only a half day is needed, the mediator should anticipate the need for more time. It is also worth noting that parties oftentimes want to work through lunchtime. If that is the case, the parties should discuss how lunch will be handled in advance. It will not help the process if the parties are hungry or feel rushed. The same holds true at the end of the day. In particular, parties are often tired and hungry by the time a mediation agreement is being drafted. If there is insufficient time to properly prepare and meaningfully review an agreement, an adjournment must be considered. See, Rule 10.420(b)(1).
Beyond the logistics, the parties are entitled to reach an informed and voluntary decision. Again, this takes time. While a mediator cannot make decisions or substitute his or her judgment for the parties, the mediator is responsible to ensure that the parties are informed. This may be accomplished by asking probing questions, facilitating the exchange of information between the parties, and ensuring sufficient opportunity for the parties to discuss new information and options with their counsel. In other words, a mediator should ask questions geared towards aiding the parties’ thought process without suggesting an outcome or answering the questions. Otherwise, how do you know if the party is making an informed decision?
While a mediator should not offer an opinion on how a court may rule, a meaningful discussion of possible outcomes, and the merits of claims and defenses is part and parcel of the process. It may be that a party only knows its side of the case. Explaining what the other side’s claims, defenses or positions are is a means to make sure the party is fully informed. Similarly, there is nothing prohibiting a mediator from providing information so long as it is not intended to coerce the party or serve as legal advice.
Similarly, questioning a party’s understanding of what issues will be tried before the Court, the relief that may or may not be available, complexities presented with enforcement of proposals for settlement and the like are all topics that a mediator may want to explore with the parties. Depending upon the case, another area that routinely requires discussion is insurance coverage. Parties oftentimes presume that the presence of an adjuster means that a big payment is available. To the extent of the mediator’s training and experience it is permissible to explain that there are different types of coverages, and question whether the party understands the distinction between defense coverage and indemnity coverage. In my experience, whether and to what extent coverage exists for a claim is a prime example of the information that a party may need to know in order to make a meaningful decision.
For example, in a construction case, parties often confuse liability insurance with performance bonds. One covers the consequences of work, while the latter provides coverage for the completion of a project, and potentially warranty rights. Plaintiffs may assume that if a contractor has liability insurance it covers poor workmanship, when it generally does not.
Of course, each mediation and decision must be made on a case by case basis. Giving thought to scheduling and the sufficiency of time, sufficiency of the information provided to the parties, and discussing the “what if’s?” are all important considerations for a mediator. While it may be the parties’ case, Rule 10.400 provides that it is the mediator’s obligation to safeguard the process. The right of self-determination is at the heart of the process.