Author: Wesley Lewis

Mediation Appearance – Comply Fully or Foot the Full Bill

This should be a no-brainer. After all, it’s in every Mediation Order and is the subject of a specific Florida Rule of Civil Procedure. Now, there is unequivocal case law authority. What constitutes “appearance” at mediation and the appropriate sanctions for failure thereof are discussed in Rule 1.720(b). “If a party fails to appear at a duly noticed mediation conference without good cause, the court upon motion shall impose sanctions, including an award of mediator and attorney’s fees and other...

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Voluntary Mediation – Give your agreements teeth…

As I advocated in my first article last summer, Mediations are not just for litigation anymore. Parties are more frequently turning to this ADR option when presuit negotiations stall. This is not always successful or appropriate, as the lack of formal discovery or other factors may prevent early settlement. Often, however, presuit negotiations fail due to posturing, miscommunication, poor negotiation skills, or a failure to appreciate the other side’s position – all of which can be overcome with...

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Mediation/Negotiation Tactic – Stonewalling

Known as dependably impenetrable, Confederate General Thomas Jonathan Jackson earned the nickname “Stonewall”. While he may not have been the choice to lead an offensive attack, Jackson’s effectiveness at rebuffing Union advances earned him respect among both sides of the great conflict. Despite being defined as “to play defensively rather than trying to score”, stonewalling tactics are often employed in negotiations paradoxically, in an effort to score concessions while giving none in return....

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Mediator Misconduct – What Can Be Done To Prevent It?

What qualities do you look for when selecting a Mediator? If you’re like most litigators, your selection criteria are not absolute but varied depending on the dynamics of the particular case. Some matters are better suited for a mild-manner Mediation approach, while others may require a bit more muscle. A Mediator’s ability to fit these varying roles enhances his or her marketability. But, what happens when the Mediator crosses the line, when the role overtakes the entire process? The right of...

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Mediation Agreements – Mistakes Can be Costly

The old adage reads, “Beware of the fine print”. Yet, two recently reported cases amplify that font size is not the only villain to a challenged “mistaken” mediation agreement. The law will generally not look beyond the four corners of a contract to determine the parties’ intent. Furthermore, the provisions of Rule 10.360(a) and Florida Statute Section 44.102(3) insulate as privileged and confidential all communications made during a Mediation conference, except “an executed settlement agreement”....

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Mediation – It’s not just for litigation anymore…

Does this sound familiar? Plaintiff’s counsel demands $25,000. Carrier offers $2,500. Counsel counterdemands $19,500, to which Carrier counteroffers $4,500. A second counterdemand of $16,000 is met with a counteroffer of $6,001. Both sides scream “No More!” A lawsuit is filed, which Carrier sends to its counsel. The attorneys fully litigate the case, consuming much time, resources, and funds in the process. The Court orders mediation, at which a settlement is reached – ten months after the lawsuit...

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