Before I worked as a mediator, I attended mediation in several states as a litigator or insurance carrier representative – in South Carolina, California, Maryland, and Colorado. Not all mediation venues are the same. Not all routinely use private mediators. In some states you may get a magistrate in federal court as your mediator. Some magistrates are okay but many “keep the robe on” during mediation and are directive and evaluative – telling you what they think in a way you would not see here in Florida. I usually recommend a private mediator wherever I go because they have an interest in doing well and can give you additional time if the mediation needs to extend beyond a single day.
I had a thorny case out of state with attorneys as parties and long-standing issues involving boat slips and membership at a private dock. Folks with money. I called the mediator two weeks in advance to get the lay of the land only to learn he only offered flat fee two-hour mediation. Local defense counsel said this was normal and was unconcerned. This was before Zoom, and I knew two hours would be only enough time to assure an impasse. My suggestion that we schedule an all-day mediation for this multi-party case (involving attorney/clients no less) seemed imminently reasonable to me, but curiously met with resistance. Only when the
insurance carrier agreed to pay for the mediator’s extended time, did the parties reluctantly agree to commit to a full day. The mediation took all day and we did not finish. Time-limited two-hour mediations seem rather foolish, but that was the norm in that venue. Investigate the process in other states before you leave home.
Florida has a highly evolved mediation culture dating back several decades, owing in large measure to the Florida Mediation Confidentiality and Privilege Act passed in 1985 and robust support from the judiciary. We also have the benefit of standards of conduct for certified mediators and the Mediator Ethics Advisory Committee (MEAC), which provides guidance to mediators and counsel where there are unsettled issues relating to mediation rules and process. It’s a pretty impressive body of ethical standards and battle-tested rules. In other states you will find mediators less sophisticated and mediation preparation inconsistent. Interest in mediation may only be lukewarm.
In some states, the mediator may dispense with the joint opening 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. In some places mediation is not court ordered, merely voluntary, and so the commitment to the process is half-hearted. Make sure you understand the breadth and scope of the mediation privilege and what can or cannot be reported to the court. Some states allow mediators to report on “bad faith” and other matters covered by privilege here in Florida.
If you mediate outside Florida, be sure to talk to the mediator and local counsel 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 was ridiculous. When traveling elsewhere 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. We do mediation pretty darn well here in Florida but expect a cool reception if you want to import our style and process to other venues.
September 11, 2024
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