Mediating With Florida's local governments: tips for the private practitioner.

• Author: Jarret, Joseph G.

This article is designed to alert members of the private bar to the nuances and subtleties of mediating with Florida's local government entities. During my tenure as a local government attorney, I witnessed the frustrations experienced by members of the private bar unfamiliar with the peculiarities of mediating with local government. My local government colleagues and I operated under the mistaken presupposition that most, if not all, attorneys were aware of the fact that the preponderance of all claim settlements reached at mediation were tentative at best and were subject to scrutiny and a vote by a body politic prior to formal approval.

The scenario is far too common. You are a private practitioner involved in a grueling day-long mediation with a local government attorney. Negotiations have vacillated between acrimony and outfight warfare. Your client, a personal injury plaintiff, is eager to settle his claim and get on with his life. Finally, just when it seems utterly hopeless, you reach an agreement that is acceptable to your client, provided he can be assured payment by the close of business the following day. You quickly draft a settlement agreement and offer it to the government's attorney. She takes one look at it and informs you that not only does she lack the authority to settle the claim, but also the county representative who accompanied her lacks settlement authority. Further, she cautions that the agreement must be presented to the elected board (who, incidentally, have voted not to meet this month), and, provided they follow their counsel's recommendation (no guarantees, mind you), then a deal can be had. Of course, the clerk of the circuit court will have to be informed of the board's decision, prior to issuing a check. Consequently, if all goes according to plan, the government may be in a position to tender a check in about six weeks.

When presented with the mechanics of settlement, your client throws up his hands in despair and asks you why you wasted all of his time and money meeting with people who not only lacked the authority to settle, but also could not guarantee payment after settlement is reached. You just learned the hard way that the State of Florida and its political subdivisions play by a different set of rules than do private sector tortfeasors when it comes to claims negotiations and settlement. This article is designed to alert you, the private practitioner, to the nuances, pitfalls, and subtleties of mediating with Florida's local government entities.

The Law

Prior to the promulgation of 1981 Fla. Laws ch. 317, the settlement of tort claims was a major source of woe for public sector attorneys.[1] Florida law, via the Government in the SunshineAct, placed a panoply of restrictions on public officials and their employees in terms of their ability to discuss pending claims freely. These restrictions required the hapless public sector attorney, desirous of settling a claim in the best interests of his or her client, essentially to sell opposing counsel's case to the elected board during the...