Mediation is a process every Florida lawyer encounters and in which some lawyers participate on a regular basis. It is an event that requires each participating litigator to know: their client(s), the law, the courts, the facts and their mediator. These elements are absolutely necessary to get the best results. It is also very helpful to know the defining sources of the process. This article is designed to identify the most important parameters of mediation. The authors would encourage you to save this article and to pass it on physically or electronically to your team members for future reference. Another resource worth saving is Mediation Myths and Urban Legends, The Florida Bar Journal, May 2008, page 52.
Chapter 44 of the Florida Statutes is the ‘constitution’ for Florida Mediation. It is the source for such mediation elements as: the standards and procedures, confidentiality and privileges. It is one of the standards interpreted by the Florida Supreme Court’s Mediator Ethics Advisory Committee (MEAC) Opinions. See, inter aliah
Florida’s Rules for Certified and Court-Appointed Mediators are the Supreme Court’s foundational rules regulating mediators. They are the source of mediator certification and renewal requirements. The rules also set forth the Standards of Professional Conduct of mediators. They provide the mechanism for discipline and define the mission of the Mediator Ethics Advisory Committee (MEAC) to interpret these rules.
MEAC Opinions are the most directly applicable standards. This committee was formed by Florida’s Supreme Court in 1994. Their formal ethics opinions primarily deal with answers directed toward mediators and involve and interpretations of Florida’s mediator rules. However, the opinions address the roles and violations of all participants. They can be found at: http://www.flcourts.org/resources-and-services/alternative-dispute-resolution/meac-opinions.stml
U.S. Bankruptcy Courts – Middle District:
Bankruptcy Courts have two separate forms of Mediation: Mortgage Modification Mediation and Alternative Dispute Resolution (ADR) Mediation. Generally, Administrative Orders and Local Rules govern mediation. Not all U.S. Bankruptcy Courts have the same rules, and it is imperative that one review the information specifically related to the court within which the mediation is to take place.
See flmb.uscourts.gov. The Local Rule is 9019-2 (M.D. Fla. L.B.R. 9019-2)
The local rule incorporates the Florida rules, the MEAC Opinions and Chapter 44 of the Florida Statutes. But, there are some differences. For example, a party may waive a mediator’s actual or potential conflict of interest. Also, the Bankruptcy Court imposes a “good faith” requirement, which is not part of the Florida Rules or Chapter 44 Florida Statutes.
The Mortgage Modification Mediation procedures are set forth on the Court’s website including Administrative Orders, sample motions, orders and forms. Mediators must be a Florida Supreme Court Circuit Mediator and have completed eight (8) hours of training focused on modifying residential mortgages in bankruptcy.
U.S. District Courts – Middle District:
The Mediation Process is governed by Chapter Nine, Court Annexed Mediation of the Rules of the District Court. flmb.uscourts.gov
The Federal Courts differ in their approach to mediation. Review the particular Court’s requirements before embarking on the mediation process.