Mediators Who Never Say Die

Scott J. Silverman, Retired Judge 11th Judicial Circuit, is a JAMS panelist based in the Miami, Fla. Resolution Center. He served for nearly 22 years on the bench and distinguished himself as one of South Florida’s highest rated circuit court judges.

Not long ago, I conducted a mediation involving a serious personal injury.  Given its severity, the plaintiff’s attorney opined that a reasonable jury could render a verdict in excess of the policy limits and therefore made a demand for them while contemporaneously threatening a potential bad faith suit.

The insurance company responded by offering a sum below, but near the limits.  The insured simply wanted the case settled to avoid any risk to his personal assets.  These dynamics are predictable and common.

The case didn’t settle at the mediation.  Instead, the plaintiff kept her demand open for another two weeks.  During this time, the plaintiff’s attorney assumed the insured would try to persuade the company to settle.

Two days after mediation, the plaintiff’s counsel requested that I contact the defendant’s attorney to find out whether he was encouraging the carrier to settle.  The insured’s lawyer answered and was not shy about expressing his disdain and bewilderment over my inquiry.  “The mediation is over,” he said.  His tone stunned me, but highlighted a topic which occurs frequently: When is a mediation actually over?

It’s Over When It’s Over

Lawyers prefer mediators who never give up.  This “never say die” attitude gets cases settled.  From a plaintiff’s perspective, persistence pays the client, and from the defense view, it pays the rent.

Under Florida law, mediation begins when the court orders it, when the parties agree to mediate, or as otherwise directed by law.  F.S. §44.404 (2012). Whichever event happens first is when the mediation commences.  It’s that simple.

The statute also states that a mediation ends when one of four events occur:

1. A mediation terminates when the parties sign a partial or complete settlement agreement.  The agreement must be one which the parties intend to resolve the dispute and end the mediation.  If, however, the agreement is one which must be brought before the court for approval, the mediation ends when the court approves the agreement.
2. A mediation also terminates when the mediator reports an impasse to the court or the parties.
3. A mediation will also terminate upon a court order, court rule or other applicable law.
4. Finally, so long as the parties appear at the mediation, they may terminate the mediation by their own agreement.  However, if the mediation involves multi-parties and one party gives written notice to all the others that it no longer intends to participate, the noticing party may withdraw. Termination, under these circumstances, affects only the withdrawing party.

The statute defines the start and finish of a mediation.  Hard work, patience, persistence and a healthy dose of tenacity can settle many cases. However, exceptionally difficult cases are settled by mediators who never say die.