Published: September 2024
Written by: Ryan M. McCarthy, Esq.
Mediation has long been a critical part of litigation for cases proceeding through Florida’s state courts. However, the Florida Supreme Court’s recent amendments to the Florida Rules of Civil Procedure underscore the importance of mediation in a changing legal landscape. The amendments, which are scheduled to take effect on January 1, 2025 (subject to comments to be made on or before August 6, 2024),[1] will more closely align Florida’s Rules with the Federal Rules, particularly when it comes to the imposition of deadlines. As such, exploring avenues for resolution will be top of mind for practitioners, as they litigate under strict case management orders and with heightened obligations for discovery and summary judgment.
The days of allowing a case to linger are gone. Practitioners will be forced to seek creative solutions to resolve cases at all stages, from early on in litigation (before substantial fees are incurred) until later points, such as the filing date of a pivotal summary-judgment motion.
Litigators, in all practice areas, have always been cognizant of the need to resolve cases expeditiously. But compound Florida’s Rule changes with increasingly cost-conscious clients, along with the advent of technology to streamline the mediation process (i.e. Zoom etc.), and it is clear to see why mediation will be catapulted to among the top case-handling considerations.
Below is an outline of some of Florida’s Rule changes that will most dramatically impact mediation, with corresponding comments:
Rule 1.200 (Case Management; Pretrial Procedure): Cases will be assigned a complex, general, or streamlined track. Deadlines in case management orders will be “strictly enforced unless changed by court order.” Completion of alternative dispute resolution will be a key deadline in streamlined and general cases. This Rule will place more attention on case management conferences with an expectation that lawyers will be prepared “on the pending matters in the case, be prepared to make decisions about future progress and conduct of the case and have authority to make representations to the court and enter into binding agreements concerning motions, issues, and scheduling.” These obligations will ensure lawyers are more prepared for mediation.
Rule 1.202 (Conferral Prior to Filing Motions): This Rule will require a movant to confer with opposing counsel, in a good-faith effort, to resolve issues raised in a motion and to certify in the motion that such conferral was completed. While some motions are exempt (such as a motion to dismiss and/or a motion for summary judgment), this Rule will compel lawyers to address and discuss cases more often. Lawyers will be required to continuously evaluate the strengths and weaknesses of their matter as motions are filed. More frequent conferral should bring about better preparation for mediation. Mediators should be ready to address pending motions from both sides.
Rule 1.280 (General Provisions Governing Discovery): This Rule will require litigants to make initial disclosures and to supplement disclosures/discovery responses. Early on, lawyers will be apprised of individuals likely to have discoverable information, documents (or descriptions) that may be used to support claims or defenses, computation of damages, and copies of insurance policies or agreements. Supplementation will be necessary if ordered by the court or if a party “learns that in some material respect the disclosure or response is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing.” Initial discovery will allow parties to meaningfully engage in mediation earlier as both sides will be forced to “show their hand.” With more information available, parties will be in a better position to evaluate the merits of claims and defenses while a case is young.
Rule 1.460 (Motions to Continue Trial): This Rule will provide “[m]otions to continue trial are disfavored and should rarely be granted and then only upon good cause shown. Successive continuances are highly disfavored.” Limited continuances should eliminate a fair amount of posturing. Lawyers will be obliged to have more frequent and frank discussions with clients about the chances of prevailing on summary judgment and/or at trial, which will keep expectations realistic at mediation. And realistic expectations lead to a more productive mediation.
Rule 1.510 (Summary Judgment): This Rule will mandate that within 60 days after service of a summary-judgment motion, “the nonmovant must serve a response that includes the nonmovant’s supporting factual position[.]” With legal positions surfacing quickly, lawyers will be engaging in a cost/benefit analysis, involving additional litigation activity versus advantages of settlement. Summary-judgment motions will be a hot topic for mediation, because of the tight time frame for a response.
In sum, the referenced Rule changes in the Sunshine State will shine a brighter light on mediation. More than ever before, mediation will play a vital role in managing the litigation in Florida’s state courts.
Ryan McCarthy is a partner at LaBovick Law Group. For additional ADR tips and resources, go to www.Palmbeachbar.org/alternative-dispute-resolution-committee.
[1] This article was written in July 2024 for publication in the September 2024 ADR Corner. While major changes to the referenced Rules are unlikely, the final versions of the Rules should be monitored through the effective date of January 1, 2025.