Governing Authority:

FLORIDA DISPUTE RESOLUTION CENTER

Sharon Press, Director

Office of the State Courts Administrator

500 South Duval Street

Tallahassee, FL  32399-1900

PH:  850-921-2910

www.flcourts.org

I.            Mediation in Florida

As most lawyers and practitioners know, Florida has been nationally and internationally recognized as being on the “cutting edge” when it comes to mediation.  Mediation has been utilized by the Florida Courts to resolve disputes for over 25 years, starting with the creation of the first citizen dispute settlement center in Dade County in 1975.  In 1976 the first legislation on citizen dispute settlement was filed.  Just one year later the Florida Supreme Court received a federal grant to establish a state-level office responsible for providing technical assistance, research and training to courts relating to citizen dispute settlement and other dispute resolution alternatives.  In 1978 Florida Supreme Court Chief Justice Overton appointed the first Supreme Court Committee on Dispute Resolution Alternatives.  That same year the Florida legislature enacted the first legislation on family mediation. 

In 1981 the Supreme Court sponsored the first statewide Mediator Training Program in Orlando.  Five years later the Florida Dispute Resolution Center was created and the first Circuit Civil Mediation Program began operating in Lee County.  Then in 1988 the Florida legislature enacted one of the most comprehensive court-connected mediation programs in the country.  This body of law gave circuit and county judges the authority to order most types of disputes to mediation.  Statewide certification of mediators and the creation of rules of procedure for governing the process followed shortly thereafter-in 1990.  Beginning in 1991, The Dispute Resolution Center began holding annual conferences to keep mediators up to date on critical developments in the field.  By 1992 the Florida Supreme Court had established Standards of Conduct and Rules of Discipline for certified and court-appointed mediators.  Boards were established to hear mediator grievances, revise mediation rules and to review mediator-training standards.    

Both governors Chiles and Bush declared Mediation Day and Mediation Week in the State of Florida.  Currently there are over 16,000 individuals that have completed the Supreme Court of Florida certified mediation-training programs.  At the time of printing this article there are 5370 individuals certified as mediators in one, or a combination of, the following areas:  county, family, circuit and dependency mediation.  Most Florida courts have established their own mediation programs, with the assistance of government funding.  Many continue to refer cases to private court certified mediators selected by the parties.  Mediation has flourished in private enterprise with the increased use of mediation at an early phase of the dispute.  Statistics reveal that anywhere from 75% to 85% of all cases settle at mediation and a great number more settle after the conclusion of the mediation, but as a result of the process itself.

Fortune 1000 companies, a number of which are headquartered in Florida have incorporated mediation into their grievance or dispute resolution processes.  Some of these companies have trained their management and human resource personnel to mediate employee/employer disputes internally.  Government agencies have now been mandated to implement their own internal dispute resolution programs, which also incorporate mediation as a core component. 

There is no doubt that mediation has infiltrated Florida’s legal system, along with being intertwined with corporate structure and the social fabric of Florida citizens.  In Florida mediation is here to stay.  The process may be molded and refined, mediators will be trained new skills and techniques, hybrid processes will develop, but the concept of third-party facilitation is one that will be forever ingrained in Florida’s dispute resolution culture.

II.  Florida Case Law:

1.                  Failure of a party to appear for mediation

In the case of Carbino v. Ward, 801 So. 2d 1028 (Fla. 5th DCA 2001) the appeals court ruled that the imposition of sanctions against a party defendant for failure to appear at mediation was proper.  Defendant Ward did not physically appear at mediation, but was represented at the mediation by legal counsel and a State Farm insurance adjustor.  The Court determined that the presence of the adjustor did not excuse the requirement imposed by Rule 1.720 (b)(1), of Florida Rules of Civil Procedure that the party be present for mediation.   

Bottom Line:  Do not assume that an insured party is excused from appearing at the mediation simply because the insurance adjustor is in attendance.

2.                  Unilateral mistake in mediation settlement agreement

In the case of Feldman v. Kritch, 824 So. 2d 274 (Fla. 4^th DCA 2002) the appeals court reversed the trial court’s order granting the appellee’s motion to set aside the mediated settlement agreement.  Shortly after the agreement was entered into at mediation, the insurer filed a motion to set aside the agreement as a result of its mistake in failing to provide that the settlement amount would be reduced by $40,000 that the insurer had previously paid to the plaintiff.  The trial court made a decision to hear testimony from the parties and the mediator regarding the settlement negotiations.  The evidence demonstrated that no mention was ever made concerning the $40,000 offset during the negotiations.  The trial court rightly concluded that the failure to provide for the offset in the agreement constituted a unilateral mistake and that the settlement agreement should be enforced given the “plain meaning” of its terms.

Bottom Line:  Mediation settlement agreements are interpreted according to general principles of contract law, and will not be set aside for unilateral mistakes.  The moral of this case is to be certain to include all material terms in the mediated settlement agreement.  

3.                  Clerical error in mediation settlement agreement

In the case of DR Lakes, Inc. v. Brandsmart USA of West Palm Beach, 819 So. 2d 971  (Fla. 4^th DCA 2002), the Fourth District rejected the holding of the trial court that the mediation privilege precluded any evidence as to what occurred during mediation, thereby leaving a party unable to prove that the mediated settlement agreement contained a clerical error.  The Appeals Court stated “We cannot imagine that the legislature intended that a party to a contract reached after mediation should not have the same access to the courts to correct a $600,000 mutual mistake, as a party entering into the same contract outside of mediation.”

Bottom Line:  Courts should not allow the mediation privilege to preclude the receiving of evidence where the parties have alleged that there is a mistake in the agreement.  If there is a finding that a mutual mistake has been made, then a party should have access to the courts to correct that mistake.  The moral of this case is if you are going to make a mistake, be sure it is a mutual one.

4.                  Mediator Misconduct

In the case of Vitakis-Valchine v. Valchine, 793 So. 2d 1094 (Fla. 4^th DCA 2001) the Fourth District concluded, in a case of first impression, that mediator misconduct could be the basis for a trial court’s refusal to enforce a settlement agreement reached at court-ordered mediation.  The wife alleged that during the mediation of the parties’ divorce the mediator informed her that if a settlement was not reached in the case, the mediator would report to the trial judge that the settlement failed because of her conduct.  The wife also alleged that the husband had coerced her into entering the agreement.  Writing for the Court, Judge Stevenson defined the mediator’s role:  “During a court-ordered mediation, the mediator is no ordinary third party, but is for all intent and purposes, an agent of the court carrying out an official court-ordered function.  We hold that the court may invoke its inherent power to maintain the integrity of the judicial system and its processes by invalidating a court-ordered mediation settlement agreement obtained through violation and abuse of the judicially-prescribed mediation procedures.”

Bottom Line:  Mediator misconduct may be the basis for setting aside an agreement.  Mediators must be cautious not to interfere with a party’s right of self-determination.

 FOR ADDITIONAL INFORMATION ABOUT MEDIATION IN FLORIDA

Please Contact ACCTM Fellow:

A. MICHELLE JERNIGAN, Esq.

Upchurch Watson White & Max Mediation Group

Shareholder

1060 Maitland Center Commons, Suite 400

Maitland, FL  32751

PH:  (407) 661.1123 / Toll Free: 800.863.1462

FX:  (407) 661.5743

MJernigan@cfl.rr.com

www.uww-adr.com