Non-appearance In Mediation Cases Can Be A Frequent Problem

By Blane McCarthy – Injury Lawyer & Mediator
Published in the 11/25/13 issue of the Jacksonville Financial News & Daily Record
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If you are a litigator, you should know that failing to appear at a mediation conference is fraught with peril. Florida Rule of Civil Procedure 1.720(f) says that the court “shall” impose sanctions, which can be dire. In Motors, Pumps & Accessories, Inc. v. Miami Medley Bus. & Indus., LLC, 116 So. 3d 503 (Fla. 3d DCA 2013), the district court of appeals reviewed a default judgment entered by a trial judge because neither the party nor its lawyer appeared at mediation. While the DCA vacated that judgment and remanded for further record development, it did not overturn that extreme sanction per se.

Some of you are thinking of abandoning this article, because “I would never ‘no show’ for a mediation!” Not so fast, as you may be more guilty of non-appearance than you realize. Did you know that a party can fail to appear even when present?

Most Mediation Orders track the language of Rule 1.720(b), which sets forth that parties “appear” at mediation when the following persons are physically present:

  • The party or a party representative having full settlement authority; AND
  • The party’s lawyer, if any; AND
  • An insurance company representative, other than counsel, for any insured party.

That seems pretty straight-forward and intuitive, right? Nevertheless, non-appearances occur with surprising frequency. Here are a few common examples:

  • Counsel appears in the dual role as counsel and insurance representative.
  • Primary party appears, on behalf of himself and the consortium claimant spouse (who is not present).
  • Parties appear by telephone without prior agreement by the opposing party.
  • Persons appear as party representatives without complying with the requirements to substantiate their representative status.
  • Physical presence by persons without the required settlement authority.

Appearance at mediation is more than simply showing up. Any one of the examples posed above would trigger Rule 1.720(f) sanctions:

“If a party fails to appear at a duly noticed mediation conference without good cause, the court, upon motion, shall impose sanctions, including award of mediation fees, attorneys’ fees, and costs, against the party failing to appear.”

You’ll note that the court does not have discretion when it comes to awarding fees and costs. Judicial discretion is reserved only for additional sanctions, such as the default judgment imposed in the case above.

I write this article to provide fair warning. Failure to appear at mediation is a more common, frequent problem than most realize. Many of these technical non-appearances go unreported to the court. Yet, each such instance exposes the party and their lawyer to a wide spectrum of sanction consequences, the least of which is mediation and attorney’s fees and costs.

Be sure your client fully appears at mediation, or you may be looking at the wrong end of an ugly sanctions order.

Blane McCarthy is a board certified civil trial lawyer and certified circuit mediator practicing in Jacksonville. You can contact him by calling (904) 391-0091, emailing bgm@bgmccarthy.com, or visiting www.jacksonvillemediator.com.