Five Keys To Success At Mediation

As a Certified Circuit Mediator for over eighteen years, I am often asked how to make the Mediation experience a success. My recent presentation on this topic to the Jacksonville Bar Association’s Probate Committee has truths that apply to any type of mediated dispute. “Success” is understood as advancing or achieving a goal. Before one can employ methods for experiencing success, one must identify the goal to pursue. While dispute resolution is the most common, it is not the only goal of mediation....

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Buyer’s remorse may work at Target, but don’t expect it to work in court

This is the time of year when many people grapple with buyer’s remorse. Credit card statements have landed by now, revealing many Christmas/holiday purchase decisions that now seem unnecessary, excessive and regrettable. In our capitalistic society, sellers are pursuing competitive advantages based on how they respond to buyer’s remorse. Retailers are enacting increasingly liberal return policies that allow more purchases to be undone for little to no reason over longer and longer periods of time....

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Non-appearance In Mediation Cases Can Be A Frequent Problem

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...

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Not all Sanctions are Created Equal

Courts have long held inherent powers to sanction bad conduct by parties or their lawyers. Some of this power has been “codified” in statutes and rules, including Florida Rule of Civil Procedure 1.730(c) titled “Completion of Mediation.” Rule 1.730(c) states, “Imposition of Sanctions. In the event of any breach or failure to perform under the agreement, the court upon motion may impose sanctions, including costs, attorneys fees, or other appropriate remedies including entry of judgment on the...

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Buyer’s Remorse Rarely Negates a Mediated Settlement Agreement

“If you never change your mind, why have one?” Edward De Bono. Indeed, many people are less resolute than are others when making decisions. Marketers prey on this human tendency of impulse decision making. It’s the reason why grocery stores line their checkout aisles with candy, gum and all manner of silly periodicals. The frequent consequence of impulse decision making is regret, second-guessing and “buyer’s remorse.” At times, the law provides relief to remorseful buyers or sellers. Some...

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Sign Here, Please – the Final Mediation Paperwork

“Sign on the dotted line” is a directive lawyers have used for ages. Generally no agreement is enforceable against a party who has not attested to it by his signature. The law treats such an “agreement” as no agreement at all. Equity has carved out a few discrete exceptions to muddy these waters, but this general legal principle has become axiomatic. So why is this simple truth frequently ignored and challenged? The latest iteration of this story comes from the Third District Court of Appeals....

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Mediation Confidentiality – Do Loose Lips Really Sink Ships?

In my standard introduction statement, I tell mediation participants of my “Top Four Reasons Why Mediation Works” list, the second of which is the confidentiality that applies to the communications that are made. If the fact finder could learn of what went on during the mediation conference, parties would be far less willing to speak the truth and earnestly explore compromise. Without confidentiality, mediation conferences would resemble poker tournaments, where bluffs and lack of candor are expected. Florida...

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Mediation Agreement – the Difference between “both” and “either”

I realize that it references outdated technology, but I am beginning to feel like a broken record. (“Corrupted MP3 file” just doesn’t have the same impact.) At the recent Personal Injury Practice Section seminar and in several Jacksonville Bar Bulletin articles, I have discussed the need to finish the task of mediation. If your goal is to resolve the matter, be sure you spend the necessary time memorializing your resolution before ending the mediation conference. Take the extra fifteen minutes...

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How Many People Does it Take to Render a Mediated Settlement Agreement Ambiguous?

The few of you who have read my prior articles have undoubtedly detected a recurring theme therein – doing what it takes so that the close of mediation can bring closure to the settlement. Don’t rush through the final step! It amazes me how parties will spend hours hashing out the terms of resolution but get impatient when it comes to documenting those terms in the mediation settlement statement. The reasons for skimping on the final documentation are many: fatigue, hunger, other commitments,...

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Mediation Agreement to Agree = Disagreement

Often, the parameters of a mediated dispute are finite and known, making the final agreement comprehensive and complete. There are occasions, however, where the dispute or its resolution process is somewhat amorphous, complicating efforts to mediate an agreement. While it is wise to whittle down the scope of the dispute by resolving as many issues as possible, counsel must be ever mindful that a less-than-comprehensive agreement may end up being no agreement at all. Such was the case in a rather...

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