W. Jay Hunston : (772) 223-5503

“Mediator-filed” Notice of Mediation spawns fourteen month dispute between mediator and Plaintiff and its counsel regarding improper “cancellation” of mediation.

“Mediator-filed” Notice of Mediation spawns fourteen month dispute between mediator and Plaintiff and its counsel regarding improper “cancellation” of mediation.

Jay Hunston M-H Photo 1

After three Motions for Sanctions, three Orders Granting Sanctions and $3,284.17 in sanctions paid by the Plaintiff, the appellate court, in Aurora Bank v Cimbler, 166 So.3d 921 (3DCA 2015), granted a Writ of Certiorari quashing the Third Sanction Order and entered a Writ of Prohibition, prohibiting the trial court from continuing to exercise jurisdiction in this seemingly unending saga.

However, the Court never addressed an underlying problem with the factual scenario — the mediator filed the Notice of Mediation; not one of the parties, and there was no Court Order appointing the mediator as the Court’s “designee” to give notice of the mediation conference. Rule 1.210, Fla.R.Civ.Proc., defines “parties”. A mediator is not a party, but is merely a “stranger” to the proceeding, unless appointed by Court Order. The mediator, therefore, had no right to file or serve pleadings or papers in the pending civil case. The Notice filed and served by the mediator should have been deemed a nullity and, therefore, no sanctions should ever have been based upon a party’s non-compliance with a Notice that was a legal nullity.

IMHO, if this approach had been applied in this case, the three Sanction Orders would all be a nullity, as they were each grounded on the Notice filed and served by a non-party to the proceeding. Rule 1.720(f), Fla.R.Civ.Proc., provides for sanctions for a failure to appear at a “duly noticed mediation conference without good cause.” The mediation in Aurora Bank does not appear to have been duly noticed.

Teaching point: Mediators, unless appointed as the Court’s designee for purposes of giving notice [See: Rule 1.700(a)(2), Fla.R.Civ.Proc.], should never file or serve Notices of Mediation if the goal is to have a duly noticed mediation. Fourteen months of litigation and appeals, based upon Motions for Sanctions filed by a mediator should never have been countenanced by the Courts.

1 Comment

  1. Jay.

    I agree with your analysis. In fact, unless I am unaware of new developments, there is no such thing in the mediation statutes or rules as a “notice of mediation,” although it now seems to be the new normal of things. As a Florida Certified Mediator, I prefer an agreed court order scheduling mediation, appointing a mediator, setting the mediation fee and its apportionment among the parties, etc. As a mediator, I send the parties a proposed agreed order to be submitted to the court. That solves all issues unless there is a continuance of the mediation conference which the parties can stipulate to among themselves or seek a modification of the court order changing the date for mediation. Jim Bowdish

Leave a Reply

Your email address will not be published. Required fields are marked *