Kimberly Sands, a partner with Upchurch Watson White & Max, has been a civil litigator and has been involved with difficult and complex disputes as litigator or mediator for over 30 years. To schedule a mediation with Kimberly, please call her case manager, Cathy McCleary, at (800) 863-1462, or visit our online calendar.
UWWM Partner Kimberly Sands
I don’t think anyone expected Rule 1.720(e), to resolve all issues concerning authority to settle at mediation. The Rule requires the service of a statement executed by counsel or a party identifying the representative attending the mediation on its behalf having full authority to settle without further consultation with respect to all issues presented by the case and with the legal capacity to execute a binding settlement agreement on behalf of the party. [See Rule 1.720(e), Fla. R. Civ. Pro.] The undisputed benefit of the Rule is that it requires some degree of forethought and preparation by the parties and their attorneys prior to mediation. It also eliminates two steps in the process of seeking sanctions. The moving party does not have to prove who is expected to appear at mediation and the authority required as these representations have already been made to the court. It’s a nice starting point for any deposition or evidentiary hearing if authority is at issue.
The Rule, however, does not apply to mediations conducted prior to litigation. There is also debate as to whether the Rule applies to a voluntary Notice of Mediation as opposed to a court-ordered Notice. [See Rule 1.700(a), Fla. R. Civ. Pro.] If the parties intend that it apply they should include the Rule in their notice or seek a court order approving a stipulation to mediate in accordance with the Rule.
The Rule also has not significantly changed how mediations are conducted in Florida. First, as indicated, the Rule does not apply to all mediations. Second, attorneys and mediators have become quite accustomed to finding ways to get decisions from those with authority to do so even if they do not appear in person at mediation. Third, sanctions are, and should be an extreme remedy, used only against the most recalcitrant parties and when strategically advantageous. Building consensus or common ground works best if the parties are not blowing up the landscape around them. Finally, under the Rule, representatives must have full authority to settle without further consultation with respect to all issues presented by the case and with the legal capacity to execute a binding settlement agreement. Despite this, most businesses do not operate by giving carte blanche to their representatives and absent the attendance of a true decision-maker, representatives frequently only operate within their delegated authority. Ironically, this often limits a party’s negotiation options.
My best advice for getting to a decision-maker is to prepare the opposing parties and their attorneys sufficiently in advance of mediation to facilitate case evaluation so that the authority given to the representative is sufficient to address all the legal and practical risks and issues associated with a dispute. Attorneys don’t like to be wrong; they don’t like to be surprised; and they don’t like to look unprepared in front of their clients. Sometimes preparing opposing counsel for what to expect, at least on those points basic to evaluation and negotiation, can be invaluable in motivating the opposing counsel to give good advice to their clients on the points that are of concern to them, allowing the client to delegate appropriate authority to their representatives. If there is a strategy that favors limited disclosure prior to mediation, recognize it as a strategy that requires consideration of the implications for success and failure and be prepared to be flexible with the process.
Also, select a mediator capable of following through on questions related to authority and making the most of the resources available to get to the decision-maker. Mediators despair as much as any participant if the appropriate party for decision-making is not present. Despite this, it remains a common phenomenon. Most cases still settle at mediation if there is common ground to do so. If a piece or pieces are missing, it’s good to have a mediator who can recognize it and begin to build that bridge when necessary for all the parties.
Finally, complex cases require greater preparation, time and patience to manage the dynamics relevant to informed decision-making. The greater the complexity of the case and the greater the distance between the decision-maker and counsel, and the larger the number of parties involved, the greater the preparation that may be required between counsel and the parties. If necessary, involve the mediator and the court to secure the participation of the parties and counsel and to exchange the information necessary to ensure decision-makers are engaged in the process. It may be necessary to structure the mediation conferences in such a way that parties and their representatives are satisfied that decision-makers with the authority necessary to resolve the dispute are participating.