Absence Doesn’t Make The Court Grow Fonder

Woody Allen once famously said, “Eighty percent of success is showing up.”   The key ingredient of Allen’s recipe for success – showing up – has long been embodied in Florida’s mediation rules, and has in fact been clarified with the recent revisions to Fla. R. Civ. P. 1.720. As the ever-growing line of cases from the Fifth District Court of Appeal illustrates, however, some have yet to get the memo.

In Carden & Assoc., Inc. v. C.O.D. Trees Partnership, 37 Fla. L. Weekly D104a (Fla. 5th DCA Jan. 6, 2012), the Fifth District ordered a case to appellate mediation.  Under recently enacted Fla. R. App. P. 9.720(a), absent a court order, a party is deemed to appear at appellate mediation only if the following persons are physically present:  (a) the party or its representative; (b) the party’s counsel of record; and (c) a representative of the insurance carrier for any insured party.  The appellants in Carden failed to physically appear at the mediation, and were represented there only by their attorney and insurance company representative.

The Fifth District Court of Appeal granted the appellee’s motion for sanctions.  “The law is clear that, absent being excused by the court, the party must appear at mediation and a representative of the insurance company cannot take the party’s place See Carbino v. Ward, 801 So. 2d 1028 (Fla. 5th DCA 2001).  The fact that Carbino involved a trial mediation, rather than an appellate mediation, is of no relevance since the appearance language in the applicable rules are identical.  See Fla. R. Civ. P. 1.720(b).”  The Carden court ordered the Appellants to pay all fees charged by the mediator, as well as the appellee’s reasonable costs incurred in preparing for and attending the mediation, and filing the motion for sanctions.

Effective January 1, 2012, the language of Rule 1.720(b) has been somewhat modified.  The amended rule does not, however, ease the requirements of “appearance”.  To the contrary, it clarifies the meaning of a “party representative having full authority to settle”, provides a self-executing mechanism for identifying the individuals who will attend the mediation, and certifying directly to the trial court that they possess the settlement authority required by the rule.  Between the language of the amended rule of civil procedure and the strong language of Carden, everyone involved in mediation, whether at the trial or appellate level, would be wise to take Woody Allen’s advice and devote their energies to achieving the other (and more difficult) twenty percent of success.

Michael S. Orfinger
Shareholder, Upchurch Watson White & Max

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