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October 2 , 2012

NEW REQUIREMENTS FOR MEDIATION

 

Florida Rules of Civil Procedure 1.720 now requires that a person with final settlement authority be physically present at all mediations. Rule 1.720 previously required the attendance of a party or its representative; however, the addition of subsection (c) mandates the physical presence of a "final decision maker."

According to the new rule, a final decision maker is a "party representative having full authority to settle without further consultation from a claims supervisor or claims committee." Specifically, in the case of an insurance claim, the party representative must have binding settlement authority in an amount up to Plaintiff's last demand or policy limits. This provision guarantees that the participants who are engaged in settlement negotiations actually have full authority to settle.

The physical appearance requirements are subject to agreement or concession among the parties. Therefore, opposing parties may stipulate to telephonic appearance of an out-of-town corporate decision maker, or the attendance of a local adjuster who may need to seek further approval from corporate superiors.

Certainly, there will be attorneys unwilling to excuse the appearance of a final decision maker. Therefore, as a precaution, the defense attorney needs to identify the appropriate representative prior to scheduling mediation. Additionally, a conversation among the attorney, the insured defendant and the insurer's representative should include the potential ramifications of a party's failure to follow the appearance requirements of Rules 1.720.

New subsection (e) requires identification of the party representative prior to the date of the mediation conference. Subsection (e) states that ten days before the scheduled mediation, each party must file a written notice identifying the name of the person attending and certifying that the attendee has legal capacity to bind the settling party. Failure to file the Certificate of Authority creates a rebuttable presumption of failing to physically appear and may subject that party to sanctions, including an award of mediation fees, attorney's fees and costs.

In sum, these changes to the mediation will require greater coordination and logistical planning between defense attorneys and their institutional clients. In order to avoid scheduling issues due to the potential limited availability of higher level personnel, all defense attorneys should contact their clients early on in the litigation process to avoid any scheduling issues, and to ensure that the proper personnel are able to attend the mediation.


This summary was prepared by Greg Schmitz of our firm.

 

Jennings L. Hurt III
Managing Partner
Rissman, Barrett, Hurt,
Donahue & McLain, P.A.
201 E. Pine St.
15th Floor
P.O. Box 4940
Orlando, Florida 32802 - 4940
Off: 407 - 839 - 0120
Fax: 407 - 841 - 9726
Cell: 407 - 760 - 9000
Email: bucky.hurt@rissman.com
www.rissman.com

JLH/GRS/rec

*This is a summary of an article that appeared in the Summer 2012 edition of the Trial Advocate Quarterly.