Mediators are fond of saying that the first rule of mediation is “self-determination” — the right of a party to make his or her own decisions about how to resolve a pending dispute.
Ironically, the Florida Supreme Court’s Committee on Alternative Dispute Resolution Rules and Policy has proposed rules that eliminate self-determination in one of the most important aspects of your mediation: the selection of the mediator of your choice.
Recently, the committee invited comments on proposed rules that prohibit mediators that are not currently certified by the Florida Supreme Court from mediating cases that have been filed in court — rules that would sideline many experienced mediators, including retired judges, that have decided, often for very good reasons, not to become or remain certified.
Before we explore the merits of the proposal, let’s put mediation certification in context: Unlike Florida Bar board certification for lawyers — a merit-based process that requires years of demonstrated excellence, experience and passing a difficult exam — mediation certification requires nothing of the kind. Instead, one can become (and remain) certified by taking expensive courses and observing eight mediations.
The committee’s effort to prohibit uncertified mediators from mediating filed cases will sharply restrict a lawyer’s ability to select the mediator of his or her choice. For example, lawyers handling a case that requires a mediator with expertise in a given area will be prohibited from selecting the best lawyer in the field unless he or she has been certified by the Florida Supreme Court.
Likewise, lawyers who have spent years successfully working with their “go-to” mediators will not be permitted to use them unless they have been certified. Similarly, lawyers handling multi-jurisdictional cases filed in Florida will be required to select a mediator certified by the Florida Supreme Court, even if the mediation takes place in another state.
Finally, many attorneys choose mediators that have not been certified here because the rules governing Florida certified mediators arguably constrain the mediator’s ability to express an honest opinion about the merits of the case — something lawyers and clients often urge mediators to do.
The prohibition against “evaluative mediation” is frequently honored in the breach, and many mediators have decided that rather than dance around the often-illusory line between asking hard questions and directly opining on a party’s position, they can best serve mediation participants by dropping their certification and speaking candidly — but not coercively — with litigants and their lawyers who solicit their views.
Lawyers often seek out mediators with substantive knowledge of the law, who are willing and able to help the parties evaluate the legal and factual questions at issue. In our view, lawyers and parties should continue to have the right to choose between “evaluative” and “facilitative” mediation. But if the proposed rule passes, that choice may become a thing of the past.
Many of us have asked what prompted the proposed rules. No one has been provided information about a precipitating event or a reason for concern. Indeed, the comments that accompany the proposed rules do not even purport to offer a basis for them.
Instead, it appears that the proposal would reduce the pool of skilled mediators in this state, limit a lawyer’s ability to select the mediator — and mediation style — he or she believes is best for the case at issue, create a captive market for mediation trainers and sharply increase certification fees collected by Florida’s Dispute Resolution Center, or the DRC.
Many well-respected lawyers and mediators have spoken out against this anti-competitive rule — some in much greater detail than this brief comment. You can email the DRC at DRCmail@flcourts.org and request copies of their comments and include yours.
Finally, we urge you to ask your friends and colleagues in the bar and on the Florida Bar board of governors to oppose these proposed rules and tell them that self-determination starts with the selection of the mediator of your choosing. You may find the email addresses of the board of governors at https://www.floridabar.org/about/bog/.
In sum, a rule that unnecessarily limits self-determination undermines the mediation process and threatens to undermine public confidence in this key component of our civil justice system. We urge the bar leadership and all lawyers to speak up to preserve your right to select the mediator of your choice.