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Good Faith in Mediation: Fact or Fiction?

Good Faith in Mediation: Fact or Fiction?
Author: rich smukler

At a recent Court ordered mediation I was faced with a challenging set of circumstances. The parties had failed to exchange documents or engage in discovery in a meaningful way. It seemed clear from the onset that this mediation was doomed for failure and end in an impasse. Why proceed any further? It was also clear that there was some bad blood between the parties and an early decision was made by me to break into separate caucuses to diffuse some of this animosity.

After private discussions with the parties, it was revealed to me that each had separate axes to grind. Plaintiff was furious with opposing counsel’s delaying and obfuscating tactics. Defendant was upset with the failure of the Plaintiff to communicate in a meaningful way and thereby eventuating in litigation.

I was able to persuade Plaintiff and Plaintiff’s counsel to allow Defendant to vent some of these complaints (and asked Plaintiff to be patient and try not to respond in a defensive manner). While this was occurring, gains were being made by both sides.

Defendant got some of his anger off his chest, and perhaps by doing so might be more amenable in the future to a reasoned approach to resolve this case. Plaintiff and Plaintiff’s counsel, on the other hand, were able to hear what the Defendant had to say, assess some of the pros and cons of his argument, and perhaps more valuably, got to assess the defendant’s demeanor in a more open forum, far less structured and restrictive than a deposition or trial situation.

Was this a violation by the parties of the “in good faith” requirement under mediation? The answer is clearly no. In fact, the concept of “good faith” is clearly a misnomer.
By the end of the mediation the parties had at least agreed to exchange discovery on a specific time-line. The mediation concluded with an impasse, as earlier predicted, but gains were materially achieved by both sides.

Pursuant to Rule 10.420(b)(3), a mediator should adjourn or terminate a mediation if “any party is … unwilling to participate meaningfully in the process.” The Committee notes that there is no requirement in the statutes, rules, or common law governing court-ordered mediation which requires a party to “negotiate in good faith,” As stated in MEAC Opinion 2003-010, a mediator may report to the Court a party’s lack of appearance at mediation Rule 1.720(b), Florida Rules of Civil Procedure; rule 8.290(1)… Florida Rules

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