Mediation Confidentiality – Can a Mediator Be Compelled To Testify About What Happened at Mediation?

Written by: Alfred A. LaSorte, Jr., P.A.
Published: April 2024

Lawyers often tell their clients that mediation communications are privileged.  But Florida’s Mediation Confidentiality and Privilege Act, F.S. Section 44.401 et. seq., has some exceptions. 

First, the rules:

F.S. 44.405(1): “Except as provided in this section, all mediation communications shall be confidential. A mediation participant shall not disclose a mediation communication to a person other than another mediation participant or a participant’s counsel.”

F.S. 44.405(2): “A mediation party has a privilege to refuse to testify and to prevent any other person from testifying in a subsequent proceeding regarding mediation communications.”  

“Mediation communication” includes “an oral or written statement, or nonverbal conduct intended to make an assertion,” F.S. 44.403(1), even a nod or shake of the head intended to convey “yes” or “no.”  

But it doesn’t include a participant’s observation of what happens, like watching a party leave in the middle of mediation.

A mediator “is responsible for …preserving confidentiality…” Florida Rules for Certified and Court-Appointed Mediators 10.300

“A mediator shall maintain confidentiality of all information revealed during mediation except where disclosure is required or permitted by law or is agreed to be all parties.” Florida Rules for Certified and Court-Appointed Mediators Rule 10.360.  And “communications made during the process are confidential, except where disclosure is required or permitted by law. FRCCM Rule 10.420(a)(3).”

Now, the exceptions:

– Committing a crime or threatening violence during mediation is specifically excluded from the privilege. F.S. Section 44.403(1). Per F.S. 44.405(4)(a)(2), a communication “willfully used to plan a crime, commit or attempt to commit a crime, conceal ongoing criminal activity, or threaten violence” is excluded. So threats of violence can be reported.

– Signed mediation written agreements. F.S. 44.405(4)(a)

– Waiver.  F.S. 44.405(4)(a)(1)

– A communication requiring “a mandatory report under Florida’s protective services laws.  F.S. 44.405(4)(a)(3)

– A communication “offered to report, prove, or disprove professional malpractice occurring during the mediation, solely for the purpose of the professional malpractice proceeding.” F.S. 44.405(4)(a)(4).

– A communication “offered for the limited purpose of establishing or refuting the voiding or reforming of a settlement agreement…” F.S. 44.405(4)(a)(5)

– A communication “offered to report, prove, or disprove professional misconduct occurring during the mediation, solely for the internal use of the body conducting the investigation of the conduct.” F.S. 44.405(4)(a)(6).

Whether a mediator may disclose things occurring in a mediation over a party’s objection  is quite fact-dependent.  

Some examples:

  1. In private caucus, lawyer tells mediator his client has no authority to make any settlement offer, in any amount.

“Communication”?  Yes. An oral statement by a participant (lawyer) to another mediation participant (mediator).

Made during mediation?  Yes.

Do any exceptions apply?  No.

So, is it privileged?  Yes.

  1. Mediator notices a party’s absence from the mediation, not through any “communication,” but because she sees them leave. Observations of what occurs (or doesn’t) are not “mediation communications,” therefore not privileged.

For a discussion of a mediator’s observations, versus mediation communications, see MEAC 2006-008.

  1. In private caucus, party says he intends to physically attack the opposing party after the mediation concludes.

Privileged?  No, since it falls within the F.S. 44.405(4)(a)(1) exception for communications “[w]illfully used to plan a crime, commit or attempt to commit a crime, conceal ongoing criminal activity, or threaten violence.”

  1. Insurance adjuster informs mediator that her most recent offer constitutes the extent of her settlement authority, and that she is unable to make any higher offer.

Communication?  Yes.

Made during mediation?  Yes.

Do any exceptions apply? No. MEAC Opinion 2006-003 states that while a mediator may report a party’s or representative’s failure to physically appear, it would be an ethical violation to report that a party or insurance representative who did appear “did not have full settlement authority.”

  1. Counsel for one mediation party feels the opposing party’s offer constitutes “bad faith.” She files a motion for sanctions and subpoenas mediator to testify.

Is opposing party’s offer a communication?  Yes.

Made during mediation?  Yes.

Do any exceptions apply?  No. The trial court should bar mediator’s testimony.  And note – there is no “good faith” requirement in mediations anyway.  See, Avril v. Civilmar, 605 So.2d 988 (Fla. 4th DCA 1992).

Florida Mediator Ethics Advisory Committee Opinion 99-012B notes that “if subpoenaed, a mediator should either file a motion for protective order, or notify the judge in accordance with local procedures, that the mediator is statutorily required to maintain the confidentiality of mediation proceedings.”  But it concludes that if ordered to testify “the better approach would be to follow the court order,” citing a prior MEAC ruling, MQAP Opinion 96-005.

The opinion further explains that if this court order gets reversed after mediator’s testimony, the aggrieved party can always seek to have the testimony stricken.


After a long career at Shutts & Bowen LLP as a commercial/real estate litigator, Mr. LaSorte is now exclusively a mediator (500+ cases) and expert witness. (561) 286-7994;  Al@LaSorteMediation.com. Alfred A. LaSorte, Jr., P.A. d/b/a LaSorte Mediation.  (www.LaSorteMediation.com)

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

Arbitration Case Law Update

Written by: Donna Greenspan Solomon
Published: March 2024

Coinbase, Inc. v. Bielski, 599 U.S. 736 (2023).  District court must stay proceedings while interlocutory appeal as to arbitrability is ongoing.

NuVasive, Inc. v. Absolute Med., LLC, 71 F.4th 861 (11th Cir. 2023).  The Federal Arbitration Act’s three-month deadline for moving to vacate a final arbitration award is subject to equitable tolling, an extraordinary remedy that is appropriate where a movant untimely files because of extraordinary circumstances that are both beyond his control and unavoidable even with diligence.

Bedgood v. Wyndham Vacation Resorts, Inc., 88 F.4th 1355 (11th Cir. 2023).  A party that seeks to compel arbitration, but whose policies do not comply with the rules and policies of the arbitral forum, cannot compel arbitration, and accordingly, may be forced to litigate the claims it sought to arbitrate.

Smith v. Int’l Bus. Machines Corp., 22-11928, 2023 WL 3244583, at *3 (11th Cir. May 4, 2023).  Plaintiff was a day late in demanding arbitration where she submitted demand to JAMS by the filing deadline but did not submit it to employer until the following day.

Cosgun v. Seabourn Cruise Line Ltd. Inc., 23-11396, 2023 WL 4112993, at *1 (11th Cir. June 22, 2023).  An appeal may not be taken from an interlocutory order that compels arbitration and stays, rather than dismisses, the action.

Bedgood v. Wyndham Vacation Resorts, Inc., 88 F.4th 1355 (11th Cir. 2023).  The Federal Arbitration Act (FAA) provision prescribes two conditions to relief on a motion to direct arbitration, which are separate but causally related: first, the party resisting arbitration must have failed, neglected, or refused to arbitrate, and second, the party seeking to direct arbitration must have been aggrieved by that failure, neglect, or refusal.

SICIS N. Am., Inc. v. Sadie’s Hideaway, LLC, 368 So. 3d 1052 (Fla. 1st DCA 2023).  Property owner was bound to arbitration provision in agreement between general contractor and tile manufacturer where owner authorized contractor to act as its agent in purchasing tiles from manufacturer.

Beyond Billing, Inc. v. Spine & Orthopedic Ctr., P.C., 362 So. 3d 256 (Fla. 2d DCA 2023).  Parties’ execution of joint stipulated motion to amend case management order, within 20 days of arbitration award, indicated parties’ mutual desire and intent to proceed to trial, and thus trial court did not have duty to enter final judgment on arbitration award when no motion for trial de novo was filed within 20-day period.

Allison v. Grand at Olde Carrollwood Condo. Ass’n, Inc., 369 So. 3d 1200, 1204 (Fla. 2d DCA 2023).  Following non-binding arbitration, the trial court failed to properly conduct a trial de novo where it limited its role to reviewing the arbitrator’s decision as if it were sitting in an appellate capacity.Alan v. Sandy T. Fox, P.A., 48 Fla. L. Weekly D2099 (Fla. 3d DCA Nov. 1, 2023).  Rule 9.130(a)(3)(C)(iv), which designates non-final orders that “determine … the entitlement of a party to arbitration” as appealable, does not encompass matters collateral to entitlement.

Seduction Cosmetic Ctr. Corp. v. Dunbar, 48 Fla. L. Weekly D2010 (Fla. 3d DCA Oct. 18, 2023).  Trial court was required to hold evidentiary hearing to resolve parties’ competing contentions as to whether arbitration clause was triggered.

Labelle v. Berenson LLP, 3D22-2113, 2023 WL 9051720, at *1 (Fla. 3d DCA Dec. 26, 2023).  Where an arbitration provision in an attorney’s fee agreement fails to include the requisite notice to seek independent counsel, the provision is in violation of Florida Bar Rule 4–1.5(i) and unenforceable on its face. 

Barton Protective Services, LLC v. Redmon, 48 Fla. L. Weekly D1560 (Fla. 3d DCA Aug. 9, 2023).  Defendant presented colorable entitlement to relief from judgment based on excusable neglect after failing to timely move for trial de novo following nonbinding arbitration, and thus trial court exceeded its discretion in failing to conduct evidentiary hearing.

M.P. v. Guiribitey Cosmetic & Beauty Inst., Inc., 48 Fla. L. Weekly D1947 (Fla. 3d DCA Oct. 4, 2023).  A litigant must establish both procedural and substantive unconscionability to avoid arbitration.

Factor Brokers, Inc. v. J&C Enterprises, Inc., 48 Fla. L. Weekly D1874 (Fla. 3rd DCA Sep. 20, 2023).  A nonsignatory to an arbitration agreement can be bound to it via assignment.  However, an evidentiary hearing is required for a court to determine the existence and validity of the assignment.


Donna Greenspan Solomon was the first attorney certified by The Florida Bar as both Business Litigator and Appellate Specialist.  Donna is a Member of the National Academy of Distinguished Neutrals and serves as a Chair on AAA (Commercial Panel) and FINRA arbitrations.  She is also a Certified Circuit, Appellate, and Family Mediator and Florida Supreme Court Qualified Arbitrator.  Donna is also a Member of the Florida Supreme Court Committee on Standard Jury Instructions—Contract and Business Cases.  Donna can be reached at (561) 762-9932 or Donna@SolomonAppeals.com or by visiting www.solomonappeals.com. 

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

A Word to the Wise on Giving Advice

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 DCLLAW678@gmail.com.  For additional ADR tips and resources, go to www.palmbeachbar.org/alternative-dispute-resolution-committee.

“They’re Negotiating in Bad Faith!” 

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 Al@LaSorteMediation.com.

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

Mediating Through Hostility: Strategies for Mediating a High Conflict Divorce

Published: December 2023
Written by: Damary V. Stokes

A divorce can be a stress-induced, chaotic time in people’s lives.  Selling one’s home, splitting holidays with the children, and dealing with the reality of a one-income household can all bring on high emotions.  In most cases, the problem isn’t that high-conflict people are bad people or bad parents; they just have more limited coping skills and need help reframing their perspectives in order to work cooperatively for the good of the family. As a mediator, being empathetic can be one of your “superpowers” in situations where both parties are high on emotions.   Empathy absorbs tension. 

A structured mediation process with appropriate support can make all the difference.  So, how do you define a high-conflict case? Some will say that all divorce cases are high conflict.  In my experience, however, it usually involves two people with deeply embedded hostility, whose modality of dealing with stress is attack.   As a mediator, being able to DISARM the hostility in the room allows parties to have a clear mind in order to make the best decisions for their family.  In law school, one of my studying tools was using acronyms to help me remember rules of law.  Using the acronym DISARM can help mediators disarm the hostility in the room, in turn facilitating open communication in a  productive and peaceful manner. 

The “D” stands for Defuse the Situation.  In order to defuse the situation, we need to address the conflict as soon as you see it.  Don’t wait and think it will smooth over.  Address it head on so the parties can address it and focus on the more important things.  Asking parties what they don’t like about the situation and what they would like to see done differently can be an effective way to communicate because it engages the problem-solving side of the person’s brain, which can break their pattern of attacking the other side or otherwise create drama. 

The “I” stands for Ignore the Words. I know, it seems to be counterintuitive to what we know.  As mediators, we are required to be active listeners.  I am not suggesting that we shouldn’t be, but ignoring the words to identify the emotion that the party is showing and expressing that emotion can be an effective way to de-escalate a hostile angry person quickly and effectively.[1]  It’s a different way of listening and responding that turns out to be a powerful tool. 

 The “S” stands for Say the EmotionOnce you have listened for the emotion, state the emotion in a short declarative “You” statement. 

The “A” stands for Acceptance.  Helping parties picture the new reality of their new normal can help people accept that they may have to downgrade in size of home or won’t see the children on an important holiday every year.  As a litigator, I would always compare a divorce as a death to my clients when they became emotional.  So much is lost in a divorce, not just money, but time with the children, loss of relationships with relatives from your spouse, etc. 

The “R” stands for Reframing.  Reframing can be used for many things when managing conflict. For example: defusing inflammatory language, refocusing attention, acknowledging strong emotions in a productive manner, and translating communication so that it is more likely to be heard and acknowledged by other parties.

 

 The “M” stands for Manage.   Managing the expectations of the parties can help the parties keep an open mind on different alternatives and new ideas to help resolve their issues.    Caucuses is a great place to do so.  Caucuses create a safe environment for a “reality test” of the positions of each party.  In other words, the caucus is a good time for a mediator to help each client identify the strengths and weaknesses of their case. Exploring these concerns in the privacy of the caucus can encourage a party to modify expectations and demands, a vital step if there is to be a voluntary agreement.


Damary V. Stokes has been a member of the Florida bar for over 15 years and was previously appointed as a General Magistrate for the 15th Judicial Circuit.  She is currently a fulltime mediator with Matrix Mediation and an adjunct professor at her alma matter law school, Nova Southeastern Shepard Broad Law Center.  Damary can be reached at 561-247-0489 or via email at damary@matrixmediation.com or www.matrixmediation.com.

[1] De-escalate: How to Calman Angry Person in 90 seconds or less, written by Douglas E. Noll

I’m Still Sticking with Zoom for Mediation

Published: November 2023
Written by: William J. Cea

I previously wrote about why I was sticking with Zoom for mediation despite the easing of Covid 19 restrictions. Having now mediated via Zoom for over three years, I am sticking with it. As everyone knows, mediation is intended to be an informal process, founded upon the principle of self-determination. While a mediator lacks authority to make any decisions or impose a resolution on the parties, my number one ask of the parties is for patience. Mediation is a process that requires patience, which is fostered by Zoom.    

During the initial orientation session, I routinely give my thoughts on the importance of patience. Oftentimes, people are participating in mediation for the first time. They are anxious, stressed and concerned with decisions that may need to be made. Participants typically expect to “hit the ground running” and ask how long the mediation will last. These pressures and feelings are only compounded if participants have spent significant time and expense planning, traveling, and everything else that goes into an in-person session.  

I understand that some believe that in person mediation is favorable. In my experience, however, not only is there no drop off by using Zoom, but the tension and frustration level that may be encountered is only heightened by in person mediation. This is particularly true when one or more parties are not fully prepared for mediation and/or there are impediments to reaching a final resolution. In such situations, it is far easier and less costly to switch gears and discuss an adjournment or process as part of a Zoom session than after everyone has traveled and gathered.  

For example, if it turns out that there is more discovery or investigation that is needed before the parties can meaningfully resolve certain issues or quantify damages, wouldn’t it be better to find that out in a Zoom session than travel to find that out? This is not an infrequent occurrence in construction defects litigation. For example, parties may have identified issues with constructed improvements, but are still investigating the extent and expense of any necessary repairs. 

Consider the time, expense, and aggravation impact on the process if parties believe traveling to an in-person mediation was a waste of time. Contrast to an initial Zoom session where issues are discussed and impediments to reaching a final resolution are hashed out. The frustration is far less when the overall time and expense of mediation is limited.  

Additionally, in multi-party construction litigation there are routinely parties that may not need to be present or participate all day. For example, a subcontractor or design professional that is only tangentially involved in the case. In these cases, it is far easier to provide the party with the opportunity to tend to other business and have them patch back into Zoom when needed.  

Similarly, participants may have scheduling restrictions that could prematurely end the mediation. What if instead, a participant could leave the Zoom to pick up a child and patch back in via Zoom. Other participants could continue to work without feeling that someone has left the in-person session creating unnecessary frustration or an impasse. 

There is also the time and expense of experts to consider. Experts can attend remotely, make a presentation, for example, and then participate on an as needed basis. If an expert is required to travel and attend mediation in person, there will be significant expense and added pressure. Hence, another reason that Zoom assists the parties. 

Finally, I have not seen a drop off on the ability to memorialize settlement agreements. To the contrary, when attorneys participate from their own workspace, they more easily generate and circulate settlement agreements. It is also easy to have counsel join the mediator in a virtual breakout room to discuss the settlement agreement and revisions or modifications that may be needed. Whether simply scanning signatures or use of virtual signing technology, drafting and execution of a settlement agreement is no more difficult using Zoom. In fact, there may not be anything more frustrating to parties that have had a long day at an in-person mediation to learn that the attorneys still need to put pen to paper at or after dinner time. Instead, if mediating via Zoom, the attorneys can and should be thinking in terms of circulating a draft settlement agreement via a privileged email as part of the mediation process.  

Thus, if mediation is supposed to be informal, flexible and conditioned on self-determination, doesn’t it make sense to provide the flexibility that Zoom provides? The mediator and the parties are also mutually benefitted if the mediator focuses on the mediation and not sitting in traffic and taking the time and energy away from preparation and focus on the day. Accordingly, this is why I am “still” sticking with Zoom for mediation. 


William J. Cea, Esq. is the current Co-Chair of the Palm Beach County Bar Association’s ADR Committee. He is also a Florida Board Certified Construction Attorney and Supreme Court Certified Circuit Civil Mediator. Having practiced law for over 30 years and mediating matters 2011, Mr. Cea now works as a mediator on a full-time basis and can be reached at (954) 494-3239 or wjc@inkedmediation.com.  

For additional ADR tips and resources, please go to the ADR Committee page of the updated Palm Beach County Bar Association website at: www.palmbeachbar.org.  

Don’t Do These Things Unless You Want to Settle

Published: October 2023
Written by: Mark Greenberg

As attorneys, your role in mediation is pivotal to achieving a favorable outcome for your client. To facilitate a successful settlement, it’s essential to provide comprehensive and accurate information to the mediator.  This Mediation Summary Outline will guide you in providing the material to ensure a productive mediation, resulting in a more likely settlement for your client.  

  1. Case Information:
  • Case Name: Clearly identify the case being mediated.
  • Trial Date: Specify the trial docket, and for state court if this is an actual trial order or estimated date from a case management order.
  • Trial Venue: Indicate the location where the trial is set to take place.
  • Judge: Mention the presiding judge overseeing the case.
  • Jury or Non-Jury: State whether the trial is jury or bench.
  1. Type of Case:
  • Describe the nature of the case, including legal issues and claims involved.
  1. Attorney’s Fees:
  • Specify whether attorney’s fees are a significant concern in the case.
  1. Negotiation History:
  • Most Recent Demand and Date: Share the most recent settlement demand and the date it was made.
  • Most Recent Offer and Date: Provide the most recent settlement offer and the date it was extended.
  1. Case Summary:
  • Present a concise overview of the case, including key facts, legal arguments, and the current status of litigation.
  1. Key Case Factors:
  • Strengths: Highlight your client’s strongest arguments or evidence that favor their position.
  • Weaknesses: Acknowledge any aspects of the case that might be challenging or unfavorable to your client.
  • Opposing Side’s Strengths: Identify the opposing party’s most compelling arguments or evidence.
  • Opposing Side’s Weaknesses: Note any vulnerabilities or weaknesses in the opposing party’s case.
  1. Client’s Settlement Objectives:
  • Clearly state your client’s goals for settlement, including desired outcomes beyond monetary compensation.
  1. Verdict Range:
  • What is your client’s best day in court?
  • What is your client’s worst day in court?
  • What are the realistic range of verdicts?
  • Availability of Similar Case Verdicts: If applicable, share information on past verdicts for cases similar to yours.
  1. Discovery Status:
  • Describe significant discovery completed and highlight any pending or outstanding discovery.
  1. Trial Cost Estimate:
  • Provide an estimate of the potential cost to your client if the case proceeds to trial.
  1. Critical Motions and Rulings:
  • Identify any critical motions, like Daubert challenges or motion for summary judgment, that may affect the case outcome. Note any rulings issued thus far.
  1. Important Settlement Terms:
  • Detail any unique settlement terms that may be of interest to your client, such as confidentiality agreements, non-compete clauses, or non-disparagement provisions.
  1. Additional Concerns:
  • Address any other issues or concerns that could impact the settlement process or case resolution.
  1. Communication with Mediator:
  • Indicate whether you’d like to speak with the mediator before the mediation session.
  1. Supporting Documents:
  • Gather and provide relevant documents, such as contracts, expert reports, photographs, repair estimates, HOA documents, and other evidence to help the mediator fully understand the case.

In conclusion, successful mediation hinges on effective communication and thorough preparation. By providing the mediator with a comprehensive Mediation Summary Outline, you lay the foundation for a productive negotiation process that can lead to a mutually acceptable settlement. Remember, your input as attorneys plays a vital role in shaping the mediation’s success and achieving a favorable outcome for your clients.


Mark Greenberg is the President of Breakthrough Mediation. He has tried over 100 cases to verdict, representing both Plaintiffs and Defendants in state and federal court. He now mediates cases throughout Florida, saving clients over $100 million dollars in legal expenses, while helping them find peace in the resolution of contentious disputes. www.btmediation.com

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

We Were (Almost) Born Ready to Negotiate

Published: September 2023
Written by: Adam Myron

If you’ve ever tried to get a six-year-old to eat vegetables, you know that children can be masterful negotiators.  I know I’ve had the following conversation many times:

“You have to eat all your carrots and broccoli.  No ice cream until you do.” 

“I can eat all that. I’ll eat three carrots and two pieces of broccoli.”

“Fine, just eat already.”

“And I want two scoops of ice cream.”

“Don’t push your luck…”

Everyone’s interests are met in these negotiations.  Here, my interest in ensuring my child eats vegetables is met, even if it comes at the cost of replacing a few vegetables with a little ice cream.  My child’s interests in getting dessert and not eating too many vegetables are met, at the mere cost of having to eat a few vegetables.  Everyone is a winner.

The frequency of such negotiations with my own children got me wondering: How do some human beings develop effective negotiation skills at an early age?  Fully answering that question would likely require a much more complicated and lengthy discussion than the space limitations of this article will allow.  However, I suspect that at least part of the answer lies in the fact that the stories, fables, and parables that parents and other caregivers tell children include morals and lessons that mirror the foundational principles upon which effective negotiations are built.  Consider the following examples.

In The Boy Who Cried Wolf, a mischievous child tasked with notifying neighbors of threats to the village gets a good laugh by sounding multiple false alarms of “wolf” until the day that an actual wolf appears and no one believes his cries to be true.  The result: happy wolf; not so happy boy.  Through this story, children learn the importance of building and maintaining trust, a key ingredient to an effective negotiation.  It may seem obvious, but if you fail to build trust with your negotiating partner (I use the term negotiating “partner” because I believe it’s counterproductive to think of that person as an adversary), you are much less likely to achieve as good of a negotiated outcome as you would have achieved if your partner had confidence in the accuracy and veracity of the information and perspectives you conveyed during the negotiation.

In The Tortoise and the Hare, a steady and persistent tortoise wins a footrace against an overeager and easily distracted hare.  The morals embedded in The Tortoise and the Hare are useful to remember at the negotiating table because negotiating is an arduous task.  It can take a lot of time, and it works best when the parties are focused and do not rush. 

In The Lion and the Mouse, the king of the jungle steps on a thorn.  He roars and howls with pain until a mouse, who could easily take advantage of the situation by leaving the lion to his misery, instead pulls the thorn from the lion’s paw.  Through an act of kindness, the mouse gains a powerful lifelong friend. The Lion and the Mouse teaches children the values of trust, empathy, and compassion.  When those values are put into practice during the negotiation process, negotiators are better able to understand perspectives that differ from their own; and, by putting themselves in the shoes of their negotiating partners, they can better understand the interests and incentives that will facilitate better-negotiated outcomes.

The Lion and the Mouse also serves as an excellent example of how to overcome a cognitive bias known as the fundamental attribution error, which is the tendency to explain other people’s behavior by placing too much emphasis on internal dispositional factors and too little emphasis on external situational factors.  In the story, the mouse has to overcome the urge to ascribe the lion’s roaring to a fierce aggressive disposition and consider that the lion’s behavior was the result of some external cause (specifically, stepping on a thorn).  Resisting that urge opened a pathway to compassion and empathy, which resulted in a positive outcome for both the lion and the mouse.

We navigate life by constantly negotiating.  Sometimes, negotiations are with other people (how do you and I resolve our conflict?), sometimes they’re with the environment (how do I get from point A to point B?), and sometimes they’re with ourselves (how will I reward myself later for hard work I do now?).  Often, we negotiate with those to whom we owe the greatest duty of care: the next generation of children who one day will be the stewards of the planet.  So although it might result in a few less vegetables and a little more ice cream eaten at suppertime, I’m still glad that the fables and stories we tell children are grounded in principles for future success.


Adam Myron is an attorney with the law firm of Cagnet Myron Law, P.A., where, as a Florida Supreme Court Certified Circuit Mediator and a Florida Qualified Arbitrator, he focuses a large part of his practice on alternative dispute resolution.  Adam is also a civil litigator in the fields of complex business litigation, trust & estate litigation, and professional liability litigation. You can email Adam at amyron@cagnetmyronlaw.com and learn more about him by visiting https://cagnetmyronlaw.com/about/attorneys/adam-myron/.

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

 

Changes and Proposals to Florida Mediation Rules

Published: July/August 2023
Written by: David Lucey

Zoom and Other Remote Technologies for Mediation

Since the start of the pandemic many mediators have become accustomed to conducting mediation remotely. Opinions differ about the effectiveness of remote mediations as opposed to in-person depositions, but remote depositions certainly save time and money for all concerned.

Effective October 1, 2022, under Florida Rule 1.700(a), all mediations in a State Court case will be in person unless the parties stipulate to appearing remotely, or if there is a motion by a party or by the court itself to allow remote mediation. See Fl. Sup. Ct. Admin. Order 21-990 that amended Rule 1.700.

All notices of mediation should specify if the mediation is in person or remote. If the mediation is remote the Notice of Mediation should state that all parties have stipulated or that it has been so ordered by the Court. The Notice of Mediation should NOT include the Zoom information for security purposes. Rather, the mediator should send that information to the participants by separate email.

Mediators should also review Florida Rule of Civil Procedure 1.730. That rule allows signatures to be manual, by fax, electronic and in counterparts; rather helpful in remote mediation. Rule 1.730 ( c) provides that a party cannot object to a mediated agreement on the grounds that mediation was conducted remotely. Nonetheless, I suggest that a mediation agreement include standard language stating that all parties agreed to remote mediation and that they had access to advice of counsel or the opportunity to consult counsel.

Unlike the Florida Rules of Civil Procedure, the United States District Court for the Southern District of Florida takes the opposite approach. Under Local Rule 16.2(a) the parties decide if they want to mediate in person or remotely and, if they cannot agree, the mediation shall be by video conference. That Local Rule also provides that if there is not an agreement the mediator’s report must state if the mediation was in person or by video conference. Please note that Local Rule 16.2 (e) requires participants to appear by BOTH video and audio; just calling in on the phone will not suffice.

Important Proposed Revisions to Rule 10.340

All mediators should review the proposed changes to Rule 10.340 available in full at;
https://www.flcourts.org/Resources-Services/Alternative-Dispute-Resolution/Training-Information/DRC-CME-Programs

This website provides an overview of some modifications to Rule 10.340 that the Committee on ADR Rules has proposed but that are not enacted.

The proposed changes would expand and provide specific definitions and examples of “Clear Conflict of Interest” i.e. conflicts that cannot be waived. Specific prohibitions include;

It is a clear conflict if the mediator, the mediator’s spouse or domestic partner is related by blood, adoption or marriage within the third degree of relationship to one of the mediation participants or a participant’s spouse or domestic partner;

The Mediator is prohibited from serving in any matter where the mediator has ever previously provided non-mediation services for or represented one of the mediation participants in the matter at issue or the mediator is currently providing non-mediation services or representing any mediation participant.

The above language proposal does not define “mediation participants”. However, Florida Statutes 44.403 (2) and (3) define “Mediation participant” and “mediation party” to only include parties to a lawsuit, and not counsel for a party. Therefore, mediators should remain free to receive repeat engagements from law firms and law firms remain free to repeatedly engage mediators who they trust.

The lack of any time limit in the proposal would mean that if a mediator had ever worked directly for a company such as State Farm Insurance, in any capacity, he/she may be prohibited from ever serving as a mediator in any matter where one of the parties is State Farm itself, and could be interpreted to prohibit the mediator from serving in a case where State Farm is the insurance company for any party. However, if the mediator had represented State Farm or a State Farm insured purely as an attorney, it appears that the prohibition would not apply. If this proposal is ever passed, we can expect the state courts, and likely the Florida Supreme Court, to clarify these questions.

Closing Thoughts

In addition to the obvious need to keep current on rule changes and updates, all mediators should be sure to include standard language in their retainer agreements, notices of mediation and draft mediation agreements that confirm that the mediator has disclosed all applicable rules to the participants, that the participants are aware of those rules, and that the mediator and participants have all acted in accordance with such rules. A few hours of careful drafting before a mediation engagement can avoid an enormous amount of trouble later.


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 DCLLAW678@gmail.com.

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

Arbitration Case Law Update

Published: June 2023 
Written by: Donna Greenspan Solomon

Prof’l Airline Flight Control Ass’n v. Spirit Airlines, Inc., 65 F.4th 647 (11th Cir. 2023).  Under Railway Labor Act, a minor dispute that parties cannot resolve is subject to arbitration before adjustment board created by airline and its employees.

Landcastle Acquisition Corp. v. Renasant Bank, 57 F.4th 1203 (11th Cir. 2023).  In arbitrations governed by the Federal Arbitration Act, courts look at whether arbitration agreement signed by agent is binding on the principal.

Warrington v. Rocky Patel Premium Cigars, Inc., 2023 WL 1818920, at *2 (11th Cir. Feb. 8, 2023).  Order denying motion to compel arbitration was affirmed where appellant “substantially invoked the litigation machinery prior to demanding arbitration.”

Communications Workers of Am. v. BellSouth Telecommunications, Inc., 2023 WL 2401327, at *3 (11th Cir. Mar. 8, 2023).  Where an arbitration provision is broad, courts should look for an “express provision excluding a particular grievance from arbitration”; otherwise, “only the most forceful evidence of a purpose to exclude the claim from arbitration can prevail.”

Corporacion AIC, SA v. Hidroelectrica Santa Rita S.A., 20-13039, 2023 WL 2922297 (11th Cir. Apr. 13, 2023).  In New York Convention case where arbitration is seated in the United States, or where United States law governs the conduct of the arbitration, Chapter 1 of the FAA provides the grounds for vacatur of an arbitral award.

Calvary Chapel Church, Inc. v. Happ, 353 So. 3d 649 (Fla. 4th DCA 2023).  School’s enrollment contract contained arbitration provision requiring arbitration of wrongful death action brought by parent whose child had died by suicide.

Lennar Homes, LLC v. Wilkinsky, 353 So. 3d 654 (Fla. 4th DCA Jan. 4, 2023).  Arbitration clause requiring arbitration for personal injuries “in the Community” required homeowner to arbitrate action against real estate developer for injuries in bicycle accident on road in community.

GR OPCO, LLC v. Murillo, 352 So. 3d 1279 (Fla. 3d DCA 2023).  Substantial competent evidence supported trial court’s finding that employee did not sign employer’s arbitration agreement and that therefore, no arbitration agreement existed.

Oana v. Solomon, 357 So. 3d 280 (Fla. 2d DCA 2023).  Where order approved arbitration award without entering final judgment but also authorized receiver’s sale of real property, the appellate court lacked jurisdiction to review the arbitration award but nevertheless had non-final jurisdiction to review the order as to the approval of the receiver’s sale of the property.

Erb v. Chubb Nat’l Ins. Co., 47 Fla. L. Weekly D2635 (Fla. 3d DCA Dec. 14, 2022).  Insurer waived its right to arbitrate by failing to timely invoke arbitration provision.

Ron v. Parrado, 48 Fla. L. Weekly D413 (Fla. 3d DCA Feb. 22, 2023).  Party may compel arbitration of agreement not containing arbitration clause if agreement incorporates a different agreement which does contain an arbitration provision.

Vitesse, Inc. v. Mapl Associates LLC, 48 Fla. L. Weekly D618 (Fla. 4th DCA Mar. 22, 2023).  Any scrivener’s error in seller’s motion for trial de novo was trivial and did not substantially impair either purchaser or trial court from having reasonable notice of seller’s desire to proceed to trial, and thus seller’s motion substantially complied with statute governing court-ordered nonbinding arbitration and rule governing motions for trial de novo.

Costa v. Miami Lakes AM, LLC, 2023 WL 2777524, at *3 (Fla. 3d DCA Apr. 5, 2023).  Non-signatory to arbitration agreement may compel arbitration of claims brought by signatory based on doctrine of equitable estoppel if signatory raises allegations of concerted misconduct by both non-signatory and one or more of the signatories to the contract; evidentiary hearing required on remand.

F.R. Aleman & Associates, Inc. v. EAC Consulting, Inc., 2023 WL 2777505, at *1 (Fla. 3d DCA Apr. 5, 2023).  Appellate court affirmed trial court’s confirmation of arbitration panel’s fee award where record contained competent, substantial evidence supporting court’s determination that the parties expressly agreed to have the arbitration panel adjudicate the attorney’s fees issue.

City of Miami v. Fraternal Order of Police, Miami Lodge No. 20, 2023 WL 2777479 (Fla. 3d DCA Apr. 5, 2023).  Police officer waived right to arbitrate grievance challenging his termination for violation of drug policy where officer actively participated in previous litigation that had already determined issues contained in grievance.


Donna Greenspan Solomon was the first attorney certified by The Florida Bar as both Business Litigator and Appellate Specialist.  Donna is a Member of the National Academy of Distinguished Neutrals and serves as a Chair on AAA (Commercial Panel) and FINRA arbitrations.  She is also a Certified Circuit, Appellate, and Family Mediator and Florida Supreme Court Qualified Arbitrator.  Donna is also a Member of the Florida Supreme Court Committee on Standard Jury Instructions—Contract and Business Cases.  Donna can be reached at (561) 762-9932 or Donna@SolomonAppeals.com or by visiting www.solomonappeals.com. 


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