The extent to which federal courts are expected to follow state law has always been one of my intellectual interests. In federal court, the case management scheduling order will include directives related to mediation.
There are differences between state courts and federal case management orders (CMSOs) that warrant discussion. Many CMSOs from the Middle District of Florida read in relevant part:
- All parties shall participate in good faith in mandatory mediation. See Local Rule 4.01. (Emphasis added).
- Authority – Except as limited by this CMSO, the appointed mediator shall have all powers and authority to conduct a mediation and to settle this case as are described in Chapter Four of the Local Rules…. The mediation shall continue until adjourned by the mediator. Only the mediator may declare an impasse or end the mediation.
- Attendance and Settlement Authority Requirements – Each attorney acting as lead trial counsel, and each party (and in the case of a corporate party, a corporate representative) with full authority to settle, shall attend and participate in the mediation conference. (Emphasis added).
- Participants shall be prepared to spend as much time as may be necessary to settle the case. No participant may force the early conclusion of a mediation because of travel plans or other engagements. The Court will impose sanctions upon lead counsel and parties who do not attend and participate in good faith in the mediation conference. (Emphasis added).
- Case Summaries – Not less than two days prior to the mediation conference each party shall deliver a case summary to the mediator. The summary shall a) concisely summarize the facts and issues of the case; and b) if a corporate party is involved, identify the name and general job description of the employee or agent who will attend and participate with full authority to settle on behalf of such corporate party. (Emphasis added)
Let’s unpack some of this language with an eye on the Rules Governing Florida Supreme Court Certified Civil Mediators and Mediator Ethics Advisory Committee (MEAC) opinions which provide ethical guidance to mediators.
Because the standard CMSO requires the parties to carefully consider attendance, to bring senior or key decision-makers, and instructs counsel to prepare a summary in advance, the process is improved.
This is helpful instructive language, or as behavioral economists might say, “a helpful nudge.” Many mediators will tell you they rarely get one written summary and almost never two; the parties rarely share information in advance other than what has been disclosed in discovery.
The second laudable part makes clear that arbitrary scheduling limitations and time constraints not born of necessity are to be avoided because the process is unpredictable.
We all recognize it takes time and effort to set up a mediation and it should not be cut short because someone myopically scheduled a flight home at 3PM or has some non-essential scheduling conflict. Figuratively speaking, all mediations really start at 4:30 p.m. The language in the CMSO attempts to encourage thoughtful scheduling.
The wording suggesting that mediation continue until an impasse has been declared by the mediator is somewhat misleading because a certified civil mediator in Florida is obligated to declare an impasse if a party so requests. MEAC Op. 2011-005.
A mediator can encourage a party to stay a while, but one cannot make someone stay if they want to leave. The language from the CMSO suggests to the uninformed that only the mediator can say when “it’s over.” This is simply not consistent with existing ethical standards. Id.
Experienced mediators get squeamish when they see language in CMSOs suggesting that parties must participate in “good faith” and stating that sanctions may be imposed for those who do not.
Here we find ourselves in rough seas. It has always been understood in Florida that no party is obligated to participate in “good faith”, nor are they held hostage by the mediator. Physical attendance, but not intellectual or spiritual engagement is required.
To the extent the language urging “good faith” reflects a judicial belief that “mediation needs to be taken seriously” there is no objection, and we are all for the better. But no Florida Supreme Court Certified Mediator should be commenting upon, much less reporting to the court, about the good faith or bad faith of a participant.
The task of evaluating good faith is hugely difficult given the absence of clear channel markers that can delineate between “bad faith” and poor risk assessment, misguided optimism, garden variety ignorance, or simple disdain for the process.
Defining bad faith, much less articulating an objective standard, is hugely difficult. Numerous commentators have addressed the difficulties of assessing bad faith in the context of negotiation and whether it should ever form a basis for sanctions in the first instance. Cross-cultural bias is also a major concern as negotiation styles considered offensive in some cultures pass for normative in others.
Assuming the Florida Mediation and Confidentiality and Privilege Act codified in Chapter 44 applies to federal court-ordered mediation, evidence of statements made during mediation are inadmissible except for statements falling in one of the enumerated exceptions to confidentiality. See §44.405-406; Sun Harbor Homeowner’s Association v Bonura, 95 So.2d 262, 270 (Fla. 4th DCA 2012)(admission of evidence of statements made during mediation was error owing to the confidentiality provisions within Florida law). All of this is by way of saying any attempt to seek a judicial evaluation of good or bad faith is hugely difficult and fraught with potential privilege objections.
Although CMSOs do not expressly reference Chapter 44, custom and practice suggest the statutory mediation privilege in Florida is understood to apply in federal court-ordered mediations. Moreover, commonly used engagement agreements from mediators (including mine) incorporate Chapter 44, making it applicable by force of contract.
It would be helpful if federal courts would reference §44.405-406 in the CMSOs. (To be sure this would be valuable to out-of-state counsel unfamiliar with Florida’s distinctive mediation culture).
I would suggest the district courts tweak the language of the CMSOs. The position statements or summaries should be sent to the other side with a copy to the mediator more than two days in advance. This is a huge opportunity for the parties to “speak” or write candidly with one another and helps the process in numerous ways.
One can always add other information for the mediator’s eyes only. Why not give the other side information to chew on a few weeks in advance? More information is better than less.
For some reason, courts are hesitant to “frontload” the process; they do not expressly encourage an exchange of mediation statements, and then sub-optimally “backload” the process by setting the mediation deadline months away from the start of the case.
This is a two-point failure for reasons I have addressed in numerous prior blogs. The CMSO should also contemplate an “early” and “late” mediation as every client deserves two chances to resolve the case and litigation postures invariably evolve.
Finally, the language in the CMSO directing that “each attorney acting as lead trial counsel” must attend raises two concerns. First, it runs afoul of the right of self-determination.
Second, it may well be that someone other than lead trial counsel and of the client’s choosing is better at negotiation and peace-making. Mediated settlements are never the product of superlative trial skills. You need a creative dealmaker, not a rainmaker.
The “lead trial counsel” language is a carry-over from the early days when courts used that language to make sure lawyers and clients viewed the mediation process as important and worthy of their time.
Whatever conceptually problematic language exists within the CMSO related to mediation is ameliorated by local mediation culture, but it might improve things if the Court nudged the parties to communicate earlier, set earlier mediation deadlines, and directed parties to prepare more effectively by exchanging position statements within the ambit of the privileges afforded by Chapter 44 of Florida Statutes.
Federal courts have a critical role in improving mediation advocacy in the state. Tweaking the language in case management scheduling orders would advance our mediation culture and align the federal court’s directives with existing mediator ethics standards and statutory privileges.