Good-faith mediation orders in Florida civil federal courts: let judges do the judging and mediators do the mediating.

• Author: Dunlap, Eric

Federal judges routinely issue a case management and scheduling order. Some of those orders require all parties to appear at a mediation and participate in good faith, and may require the mediator to report conduct that falls short of a good faith effort. Other federal judges--perhaps most--would merely expect such good faith. Anything less would offend their tight grip on both the litigation and the parties' behavior. Still, others argue "good faith negotiations" at mediation is implicit in Federal Rule of Procedure 16. (2)

This article is directed to mediators ordered to conduct a mediation in "good faith," attorneys who want to seek enforcement of such an order, and to the judges who may be inclined to issue such an order. The answer to all is almost certainly: "Beware."

A few federal district court rulings in 2014 addressed the dilemma of mediation in good faith faced primarily by the mediator. If good-faith conduct is required by the parties at mediation, who alerts the judge to the lack of it? Who, in fact, judges the conduct itself? The mediator is restricted by both the requirements of confidentiality --as are the parties--but the mediator is also bound by impartiality, the self-determination of the parties, and is the only person at the mediation who is required to report back to the court. It is simply unethical for a mediator to report a party's failure to negotiate in good faith in the absence of a procedural rule allowing such a report. (3)

In state court, mediators ordered to maintain good-faith negotiations at the mediation are required to decline the assignment on the ground it violates the mediator's obligations to maintain confidentiality. (4) Consistent adherence to the requirement would, however, necessitate that the mediation only be conducted by an unethical mediator, or not at all.

Bankruptcy court in the Middle District (similarly in the Southern District) until recently required mediation in good faith. (5) The ethical mediator in that situation--when an applicable rule requires good-faith conduct--should consider informing the parties of the rule during the opening statement. (6) Such an opening statement, though, is not unlike offering confidentiality with one hand and threatening to snatch it back with the other, depending on the participants' behavior as measured by an ambiguous standard.

The mediator's dilemma arises primarily from Florida Rule for Certified and Court-Appointed Mediators 10.300, which indicates 1) the purpose of mediation is to provide a forum for consensual dispute resolution by the parties, and 2) the mediator must honor the parties' right of self-determination, must act with impartiality, must preserve confidentiality, and avoid improper influence or coercion.

Court orders directing mediators to report a party's lack of good faith during the mediation process necessarily require a mediator to evaluate the actions, offers and counteroffers, and decisionmaking of the parties at mediation for the sole purpose of reporting to the court the absence of good-faith negotiating. In evaluating the action and offers, the mediator is, in essence, called upon to substitute his or her judgment for the parties' judgment--called upon, in other words, to violate every tenet of Rule 10.300.

There are essentially three positions regarding whether there should exist a sanctionable requirement that parties in federal court mediate in good faith. The first position is that such a requirement complements the judge's right and obligation to control the litigation. And, as discussed above, the phrase "good faith" is flexible enough to adjust itself to the will of the court and the spirit and express purpose of mediation principles. (7)

The second position argues that because the term "good faith" is vague, it is subject to varying and unpredictable outcomes. One of those outcomes may be that the court must examine the actions, statements, and motives of the mediation participants. Such a process may even require the testimony of the mediator, which would turn confidentiality on its head. (8)

The third position is that a good-faith requirement may force a party to adjust its case presentation in a way it might otherwise not. In that sense, the voluntary and nonbinding nature of mediation maybe compromised. The parties would be unsure of what communications will remain confidential. (9)

Having considered all these concerns, the Section of Dispute Resolution of the American Bar Association's position is, "Sanctions should be imposed only for violations of rules specifying objectively determinable conduct." (10) Further, the phrase "good faith" should not be used in conjunction with such rules so that their objectivity is understood. The section also...