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Another Independence Day has passed, and those of you reading from Florida are probably looking for someplace north of here to spend some time. I’ve traveled extensively and have been to mediations as either an insurance carrier representative or as litigation counsel in a variety of states from Maryland to Missouri and California. If you’re litigating outside of Florida, the differences in attitudes and process surrounding mediation may be surprising. For example, in San Francisco, we had a federal magistrate with mediation training who conducted the mediation in a thorny trademark case. She was engaged, thoughtful, and somewhat surprisingly gave us two days of her time.
In a case just outside Baltimore, the mediation ordered by the court (unbeknownst to me) was scheduled to last only two hours. That was the “norm.” Luckily, I had called the mediator a week in advance to discover he was only scheduling two hours on his calendar and neither he nor the attorneys had discussed the actual time needed or scope of the mediation. In that case, there were a host of non-economic issues, and the parties included lawyers. My suggestion that we schedule an all-day mediation seemed imminently reasonable to me, but it was met with a very cool reception. Ultimately, when my carrier agreed to pay for the mediator’s extended time, the parties then only reluctantly agreed to commit to most of the day.
No state I’ve read about or visited has the level of mediation infrastructure that Florida enjoys. Florida has a highly evolved mediation culture dating back several decades, owing in large part to passage of the Florida Mediation Confidentiality and Privilege Act in 1985 and the creation of no less than four mediator certification standards for circuit, county, appellate, and family court cases. We also have the benefit of extensive standards of conduct and the Mediator Ethics Advisory Committee (MEAC), which provides guidance to mediators and counsel where there are unsettled issues relating to rules and process.
In many states, the mediator may dispense with the joint session as a matter of routine unless you ask for it, and again you will likely have to convince the other side of the value of the joint session. Mediation culture and practice differs widely across the country, and the commitment to and understanding of the process is inconsistent or lukewarm.
One of the frequently debated topics is whether the parties should sit (or Zoom) together in a joint session. The only time I suggest dispensing with opening session is when the litigation and underlying facts involve grave emotional pain or tragic circumstances. The death of an infant, sexual battery, and drunk driving cases fall into this category. Most don’t. The jurisdictions that dispense with a joint session as a matter of routine frequently offer little or no rationale for this practice.
I think sitting around the table in person or via Zoom is hugely important and a lost opportunity. I cannot tell you how many times I’ve seen an articulate and respectful opening statement pay dividends for one side or the other. False assumptions or misapprehensions get righted. Often, Plaintiffs want to hear their lawyer “present the case” to the other side. They want to be heard. Opening session can be cathartic and affords the Plaintiff an assured opportunity to know the other side is listening, if only for a few moments. Defendants can humanize a corporate client and offer an apology that might save you money down the road. This may be the only chance for your client to eyeball the other side before trial.
Elsewhere, the common objection to the joint session is the oft-spoken belief that someone is likely to misbehave or say something offensive. This only confirms in my mind the sense that lawyers in these venues are not likely well-trained in effective mediation tactics, and perhaps the mediators are not sufficiently empowered to police the room. I do not tolerate insults, nor any verbal abuse, and the instances where it has occurred do not warrant a change in practice. I always have the power (real or perceived) to silence the room.
If you mediate outside Florida, be sure to get the lay of the land and always talk to the mediator well in advance. Expect there to be some habits and customs that are sub-optimal or different than you expect, like the “standard” two-hour mediation which—depending on your perspective—is wildly optimistic or foolish (that jurisdiction also had rotating judges for motion practice). When traveling, expect resistance to proposed changes in process, and be prepared to offer thoughtful explanations and justifications for any changes you are advocating well before the mediation date.
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