Effective January 1, 2012, the Florida Supreme Court amended the civil rule regulating mediation procedures in Florida. See In re Amends. to Florida Rule of Civil Procedure 1.720, 75 So. 3d 264 (Fla. 2011). Significantly, the Court added subparagraph c which defines the phrase “party representative having full authority to settle” found in subparagraph b. (Subparagraph b considers a party to have “appeared” at mediation only if the following individuals are physically present: (1) a party or its representative “having full authority to settle without further consultation”; (2) the party’s counsel of record; and (3) an insurer’s representative for any insured party who has full authority to settle up to the amount of plaintiff’s last demand or policy limits.). The changes to the rule are designed to promote the efficacy of mediation by requiring that all parties be represented by persons in attendance who are authorized to settle, while preserving the parties’ ability, by mutual consent, to determine their own course.

Presence of Final Decision Maker

 

The new rule now mandates that the “final decision maker” be present for mediations. Under the new rule, a final decision maker is a “party representative having full authority to settle” without further consultation from supervisory personnel at the insurance company. The party representative must also have “the legal capacity to execute a binding settlement agreement on behalf of the party.” The committee notes clarify that a party representative’s mere decision not to settle does not, in and of itself, signify the absence of full authority to settle. While this requirement may present logistical issues for large corporations and institutions that operate through boards and committees, some courts have been unsympathetic. The practical solution is for parties to recognize the problem in advance of mediation and either by agreement of counsel or application to the court, devise an appropriate resolution.

Exception

This new requirement, however, may be dispensed with by court order or by written stipulation between the parties. There is also some authority predating this rule change that a violation of subparagraph b can be waived by the opposing party proceeding with mediation once it learns of the violation.

Compliance & Sanctions

The amended rule provides an objective standard for determining compliance with the physical presence requirement. New subsection (e) requires identification of the party representative prior to the date of the mediation. It also provides that 10 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 the 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 which may include an award of mediation fees, attorney’s fees, and costs.