Southern District of Florida


IN BRIEF

Process summary

Mediation. In 1993, under Local Rule 16.2 and the district's CJRA plan, the Southern District of Florida established a mandatory mediation program. See below.

Other ADR. Summary jury trials are occasionally used.

Judicial settlement conferences. Mandatory settlement conferences with judges are also authorized and used by the court.

Of note

Obligations of counsel. Attorneys are required to discuss ADR and settlement options with each other and their clients and to demonstrate to the court that they have done so. Counsel must also be prepared to address the case's suitability for ADR with the assigned judge.

For more information

T. G. Cheleotis, Special Assistant to the Court Administrator, 305-536-4053; Carol Cope, Chair, Mediation Committee, 305-235-0248


IN DEPTH

Mediation in Florida Southern

Overview

Description and authorization. Under Local Rule 16.2 and the district's CJRA plan, effective November 21, 1991, the Southern District of Florida established a mandatory mediation program in 1993 for almost all civil cases. Eligible cases are automatically referred by the assigned judge to mediation by pretrial order following the initial, mandatory scheduling conference. A single mediator, selected by the parties from the court's roster of certified mediators or from an outside source, meets with the parties to facilitate settlement by suggesting alternatives, analyzing issues, and conducting private caucuses. The process does not allow for testimony of witnesses, and the mediator does not review or rule on questions of fact or law. Absent other agreement, mediators are paid $150 per hour, shared equally by the parties.

Number of cases. Between January and November 1994, 3,611 civil cases were filed in the district. Those that proceeded to an initial scheduling conference were automatically referred to mediation.

Case selection

Eligibility of cases. All civil cases are eligible for mediation except the following case types, which are exempted by Local Rule 16.2.C: habeas corpus cases; motions to vacate sentences under 28 U.S.C. § 2255; Social Security cases; foreclosure matters; civil forfeiture matters; IRS summons enforcement matters; bankruptcy proceedings; land condemnation cases; default proceedings; student loan cases; VA loan overpayment cases; naturalization proceedings filed as civil actions; cases seeking review of administrative agency action; statutory impleader actions; Truth-in-Lending Act cases not brought as class actions; Interstate Commerce Act cases; Labor Management Relations Act and ERISA actions seeking recovery for unpaid employee welfare benefits and pension funds; and civil penalty cases. In addition, any case may be exempted by order of the assigned judge.

Referral method. Cases are referred to mandatory mediation after the initial scheduling conference by order of the assigned judge. In addition, any action or claim may be referred to mediation on stipulation of the parties.

Opt-out or removal. Cases may be exempted or withdrawn from mediation by the presiding judge at any time before or after reference if a party applies for removal or if the judge determines for any reason that the case is not suitable for mediation.

Scheduling

Referral. Cases are referred to mediation by court order entered after the initial scheduling conference.

Written submissions. At least ten days before the mediation, all parties must exchange and submit to the mediator brief written summaries of the case, identifying the issues to be resolved.

Mediation session. The mediation hearing must be conducted no later than sixty days before the scheduled trial date. Plaintiff's counsel is responsible for coordinating the mediation date and location. Mediation hearings are generally conducted either at the courthouse or at the neutral's office.

Number and length of sessions. The mediation process usually entails one to three sessions, which last three to ten hours altogether.

Program features

Discovery and motions. Other case activities must go forward during the mediation process.

Party roles and sanctions. In addition to counsel, each party or party representative with full settlement authority is required to attend the mediation session. If insurance is involved, an adjuster must attend with authority to settle up to the policy limits or up to the most recent demand, whichever is lower. Sanctions may be imposed by the court for failure to comply with the attendance requirements or other aspects of the referral order.

Outcome. Within five days of the mediation session, the mediator must file a mediation report stating whether attendance requirements were met and whether the case settled, will continue in mediation with the consent of the parties, or should be removed from mediation because the mediator has declared an impasse. If the parties settle, counsel must inform the court by notice of settlement signed by counsel of record within ten days of the mediation. If the mediation ends in impasse, the case is tried as scheduled.

Confidentiality. All proceedings of the mediation conference, including statements made by any party, attorney, or other participant, are privileged. The proceedings may not be reported, recorded, placed into evidence, made known to the trial court or jury, or construed for any purpose as an admission. A party is not bound by anything said or done at the conference, unless a written settlement is reached, in which case only the terms of the settlement are binding. Absent a settlement, the mediator reports to the assigned judge only whether the case settled, was adjourned for further mediation by agreement of the parties, or was declared at an impasse by the mediator.

Neutrals

Qualifications and training. Individuals may be certified by the chief judge as court mediators if they have completed at least forty hours of mediation training in the Florida Circuit Court Mediation Course and are either: (1) a former state judge in a court of general jurisdiction and a member of the bar in the state in which he or she presided; (2) a retired federal judge; or (3) an attorney admitted to a state bar or the bar of the District of Columbia for at least ten years and currently admitted to the bar of this court. In exceptional cases, other candidates may be certified as court mediators.

Selection for case. Within fifteen days of the order of referral, the parties must agree on a mediator. If they cannot, the court assigns one. The parties are encouraged to use the court's list of certified mediators, but they may select any individual as mediator. If the court appoints the mediator, the clerk selects one from the court's roster through a blind draw.

Disqualification. Any person selected as a mediator may be disqualified for bias or prejudice as provided in 28 U.S.C. § 144 and must be disqualified in any case in which such action would be required by a justice, judge, or magistrate judge governed by 28 U.S.C. § 455.

Immunity. Florida Statute § 44.10 grants quasi-judicial immunity to mediators receiving referrals from the state courts. The court has indicated that it believes a similar immunity would be found to apply to mediators receiving referrals from the federal district court program.

Fees. Mediators are compensated at the rate of $150 an hour set, by standing order of the court, unless the parties and the mediator agree in writing to a different rate. Absent other agreement by the parties, the mediator's fees are shared equally by the parties. Mediators certified by the court are also required to accept at least two mediation assignments a year for a lesser fee or no fee.

Program administration

There is no overall court administration of the mediation program. The clerk's office maintains a list of certified mediators. The parties are responsible for all other aspects of the mediation referral.


Excerpted from ADR and Settlement in the Federal District Courts: A Sourcebook for Judges & Lawyers, 1996, a publication of the Federal Judicial Center and CPR Institute for Dispute Resolution