Written by: David Lucey
Published: February 2024

Mediation participants and counsel often ask for the mediator’s opinions and/or advice.

These requests create potential ethical issues. Mediation is a consensual process wherein the participants reach a resolution of their choosing with the mediator acting only to facilitate that process.

Rule 10.310(a) reads as follows:

(a) Decision-Making. Decisions made during a mediation are to be made by the parties. A mediator shall not make substantive decisions for any party. A mediator is responsible for assisting the parties in reaching informed and voluntary decisions while protecting their right of self-determination.”

See also the Committee Notes to Rule 10.310 that read in relevant part:

“It is critical that the parties’ right to self-determination (a free and informed choice to agree or not to agree) is preserved during all phases of mediation. A mediator must not substitute the judgment of the mediator for the judgment of the parties…”

However, Rule 10.370(a)  reads in relevant part:

“(a) Providing Information. Consistent with standards of impartiality and preserving party self-determination, a mediator may provide information that the mediator is qualified by training or experience to provide.”

But see 10.370(c);

“(c) Personal or Professional Opinion. A mediator shall not offer a personal or professional opinion intended to coerce the parties, unduly influence the parties, decide the dispute, or direct a resolution of any issue. Consistent with standards of impartiality and preserving party self-determination however, a mediator may point out possible outcomes of the case and discuss the merits of a claim or defense. A mediator shall not offer a personal or professional opinion as to how the court in which the case has been filed will resolve the dispute.”

Where is the line between permissible sharing information about the merits of the case and impermissible predictions about the outcome?

STICK TO FACTS when responding to questions such as following;

“What will going to trial cost?”- Does the mediator have direct experience in trying a similar case? If so, one may share that experience but emphasize that each case is unique.

“What will Judge X do about issue Y?”; A mediator may presumably share his/her experience with Judge X on issue Y, as long as the facts and issues are the same or very similar, but again emphasize each case is its own creature.   

“What do you think we should do?” DANGER! Refer to the exact language in Rule 10.370 (c). Answer that question with a series of questions. Make sure the series includes questions about what outcome the party desires and what they are willing to do or give up to achieve that outcome.

The interplay of Rules 10.310 and 10.370 requires a careful balance. A mediator who does not provide any input based on his or her knowledge or experience is nothing more than an overpriced messenger service. However, a mediator must not advocate or appear to advocate for any particular outcome.

If a party or their attorney truly desires an evaluation, a mediator may offer his / her services for early neutral evaluation (ENE), but he/she must CLEARLY STATE in the retainer/engagement letter that this is the nature and purpose of the services. The retainer/engagement letter should specifically state that the ENE process will NOT satisfy an order that the parties engage in mediation. I strongly recommend having the parties and their counsel sign and initial any such retainer.

All mediators have a responsibility to the parties, to the Courts and to the profession to maintain mediation as a truly impartial and consensual process wherein the parties determine their own outcome.  Any perception of bias or coercion by any mediator is not only contrary to the rules but will also cause the public to lose faith in the mediation process. By avoiding any temptation to push parties toward the mediator’s preferred result the mediator will, in the long term, enjoy better results, happier clients and will help uphold the purpose of the mediation process.

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David Lucey has been a member of the Florida bar since 1990 and a Florida Supreme Court certified circuit court mediator since 2009. Mr. Lucey’s practice, as both Attorney and Mediator, encompasses multiple areas, including civil, litigation, family law, and condominium/homeowners’ association law. Mr. Lucey is available at 561-632-6921 or DCLLAW[email protected].  For additional ADR tips and resources, go to www.palmbeachbar.org/alternative-dispute-resolution-committee.

Written by: Alfred A. LaSorte, Jr.
Published: January 2024

A common mediation complaint is that the other side is negotiating in bad faith, usually prompted by dissatisfaction with their offers or demands.  “Their nuisance-value offer is insulting! They’re not here in good faith!” or “That offer is less than they offered a year ago. You can’t move backwards.  That’s bad faith!” or “Plaintiff’s demand is higher than they could ever get on their best day in court. That’s bad faith!”

A mediator helps the parties reach an acceptable settlement. (Most mediations do settle. I confess to taking it personally when they don’t!)  I understand parties’ frustration when the other side takes unreasonable positions, making settlement less likely.

But many attorneys misunderstand what parties are, and are not, obligated to do in court-ordered mediation. In the absence of a court order to the contrary, parties are under no obligation to make “good faith” offers.

Note – Some courts’ local rules impose a good faith requirement on parties’ mediation conduct.  See, Local Rule 9019-2(C)(4), U.S. Bankruptcy Court, Southern District of Florida: mediators “shall report to the court the failure of any party to participate in the mediation process in good faith.” This reporting obligation conflicts with the Florida Mediation Confidentiality Act, F.S. Sections 44.403 and 44.405. See, MEAC Opinions 95-009, 2001-004 and 2004-006.  (A similar provision was removed from Middle District of Florida’s Bankruptcy Local Rules.) Whether such rules are enforceable is beyond this article’s scope.

In Avril v Civilmar, 605 So.2d 988 (Fla. 4th DCA 1992), the Fourth DCA took on this issue.  There, mediation occurred early in the case, when little discovery had occurred. The defendants offered $1,000.00.  Plaintiff’s counsel moved for sanctions, asserting they acted “with unclean hands and not in good faith.” The trial court agreed, granting sanctions against the defendants. 

In reversing the sanctions order, the Fourth District pointed out that, while parties are required to 1) attend court-ordered mediations (FRCP 1.720(f)), and 2) comply with mediated settlement agreements (FRCP 1.730(d)), there is no requirement that any party make any offer in any amount:

At bottom, plaintiff’s only basis for sanctions is merely that defendants were unwilling to make an offer of settlement satisfactory to him. The mediation statutes, however, do not require that parties actually settle cases. [Florida Statutes] Section 44.1011(2), explains that mediation “is an informal and non-adversarial process with the objective of helping the disputing parties reach a mutually acceptable and voluntary agreement.”

In mediation, decision-making authority rests with the parties. It is clearly not the intent to force parties to settle cases they want to submit to trial before a jury. There is no requirement that a party even make an offer at mediation, let alone offer what the opposition wants to settle. (Emphasis added.)

Take a moment and let that sink in. Avril is thirty years old, but is still good law. See, Massey v Beagle, 754 So.2d 146 (Fla. 1st DCA 2000); MEAC Opinions 2001-004, 2004-006, and 2012-005.

Parties are constitutionally entitled to their day in court and cannot be forced to settle. Your opposing party’s intransigence does not create a remedy when mediation fails.  Note – it’s different where a party fails to appear for a court-ordered mediation, or to have required settlement authority, or to bring an insurance representative, if required by the Court’s mediation order. This article only focuses on bad faith claims based on dissatisfaction with opposing parties’ offers.

So, what can you do if the other side isn’t playing fair? (Hint – don’t file a sanctions motion.)  First, remember that while most mediated cases settle, many don’t. That’s why we have courtrooms.  An opponent may seem intransigent, but that’s their right.  That’s how our system works.

Try viewing the case from the other side’s point of view, to better understand their motivations.  Maybe this is “bet the company” litigation where a loss could put the company out of business, or one where a settlement could open the door to other claimants.  There may be extrinsic pressures  preventing a defendant from offering an amount it might otherwise offer. Similarly, some plaintiffs demand unreasonable amounts out of the gate, hoping to leave themselves some room to maneuver.  A demand higher than a plaintiff’s “best day” in court will understandably be seen by the other side as bad faith.

My advice? Be reasonable in your demands and offers, regardless which side you’re on.  If the other side isn’t reciprocating, let your mediator talk to them. Often, unreasonable demands and offers result from failure to appreciate the risks and expenses of a trial.  A mediator can help educate parties, leading to more realistic offers.

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After a long career at Shutts & Bowen LLP as a commercial litigator specializing in real estate and general business cases, Mr. LaSorte now acts exclusively as mediator (over 500 cases so far) and expert witness through his own firm, Alfred A. LaSorte, Jr., P.A. d/b/a LaSorte Mediation.  (www.LaSorteMediation.com).  Mr. LaSorte can be reached at (561) 286-7994 and [email protected].

For additional ADR tips and resources, go to https://www.palmbeachbar.org/alternative-dispute-resolution-committee/