Florida Mediation Group, Inc.

FLORIDA'S MEDIATION CASE LAW




  1. AVRIL V. CIVILMAR, 605 SO. 2D 988 (FLA. 4TH DCA 1992) HELD: Failure of insurds or their insurer to make offer of settlement satisfactory to Plaintiff during court-ordered mediation was not basis for sanctions. A party is not required to make an offer at mediation; Attendance and participation are only requirements; there is no "Bad-faith". [BAD FAITH]

  2. ROYAL CARIBBEAN CORPORATION V. MODESTO, 614 SO. 2D 517 (FLA. 3RD DCA 1992) HELD: Florida Statute providing for confidentiality of mediation proceedings was not preempted by Federal Jones Act. Mediator was precluded from being called as a witness in Jones Act claim brought in state court by injured seaman. [CONFIDENTIALITY]

  3. GORDON V. ROYAL CARIBBEAN CRUISES, LTD., 641 SO. 2D 515, (FLA.3RD DCA 1994) HELD: In order for a settlement agreement to be binding, it must be reduced to writing and signed by both parties and their counsel, if any. Confidentiality afforded parties in mediation must remain inviolate. [CONFIDENTIALITY\SETTLEMENT-

  4. HUDSON V. HUDSON, 600 SO. 2D 7 (FLA. 4TH DCA 1992) HELD: Former wife's introduction into dissolution proceeding of matters discussed and tentatively agreed to in mediation process violated the spirit and letter of mediation statute, Chapter 44.102(3) of Florida Statutes. Confidentiality of negotiations had to remain inviolate until written agreement was executed by all parties. Trial court's Final Judgement of Dissolution of Marriage was vacated, and matter tried again. [CONFIDENTIALITY]

  5. FABER V. WESSEL, 604 SO. 2D 533 (FLA. 4TH DCA 1992) HELD: Trial judge had to be disqualified when the judge previously denied a motion to compel compliance with settlement agreement allegedly reached during mediation and the judge had been furnished with the specific terms of the purported agreement. [CONFIDENTIALITY/DISQUALIFY JUDGE]

  6. COHEN V. COHEN, 609 SO. 2D 785 (FLA. 4TH DCA 1992) HELD: Relying upon its holding in Hudson, supra, the appellate court reversed a dissolution of marriage judgement which enforce an oral agreement reached by the parties during the course of a court-ordered mediation conference. In Hudson, the District Court held: "...an oral agreement reached during mediation is inadmissible as privileged unless it has been reduced to writing..." Case was remanded for a new trial. [CONFIDENTIALITY/SETTLEMENT-IN-WRITING]

  7. TAYLOR V. TAYLOR, 20 FLW D371, 650 SO. 2D 662 (FLA. 1ST DCA 1995) HELD: Trial court properly allowed former husband to testify concerning discussions which occurred during mediation conference where former wife sought relief from the plain terms of mediated settlement agreement based on her allegation that the illness of the parties' minor daughter was not anticipated at the time the settlement agreement was executed. "A party seeking relief from a written settlement agreement on the basis of his or her intent and thoughts at the time the agreement was entered into may not assert that the matters discussed during negotiations of that agreement are privileged." [CONFIDENTIALITY WAIVED]

  8. MCKINLAY V. MCKINLAY, 20 FLW D128, 648 SO. 2D 806 (FLA 1ST DCA 1995) HELD: Trial court committed error by not allowing a mediator to testify when the appropriateness of the mediation session was in question and when the objecting party waived her privilege of confidentiality. Factually, parties entered into stipulation agreement which was signed by both parties, their attorneys, and mediator. Agreement purportedly represented a settlement of all martial issues between the parties. The following day, wife wrote to her attorney and said she signed agreement under duress and did not feel it was in her best interests. Husband's attorney sought to have the mediator testify, and wife's attorney objected pursuant to section 44.101(3) and 44.302(2), which state that mediated matters are privileged and inadmissable over objection. [CONFIDENTIALITY- MEDIATOR - WAIVED]

  9. VALENTI V. VALENTI, CIRCUIT CASE 92-40124 FC 16, 11TH JUDICIAL CIRCUIT, DADE COUNTY, FLORIDA HELD: Trial court would not consider any evidence of any notes taken at the mediation sessions concerning the events that transpired during a confidential mediation session, including but not limited to testimony or notes of the mediator, counsel for either party, or the parties themselves. Trial judge quashed husband's subpoena duces tecum which required mediator to appear at a deposition and bring with her any and all notes in her possession regarding the mediation conference. [CONFIDENTIALITY-MEDIATOR]

  10. HAFFA V HAFFA, 11TH JUDICIAL CIRCUIT COURT, #93-13422-FC12, DADE COUNTY, FL. HELD: The trial Court denied mediator's motion to quash subpoena duces tecum filed to clarify a scrivener's error in the Divorce Settlement Agreement giving the wife only 25 shares of stock, instead of the intended 2505 shares. No one noticed the error at the Mediation and thereafter the husband would only abide by the terms of the Agreement. The court limited the mediator's testimony and documents to the terms of the Agreement. [CONFIDENTIALITY - MEDIATOR - SCRIVENER'S ERROR]

  11. PARANZINO V. BARNETT BANK OF SOUTH FLORIDA, N.A., CIRCUIT CASE 91-36500, 17TH JUDICIAL CIRCUIT, BROWARD COUNTY, FLORIDA HELD: Trial court ordered parties to mediation. Parties mutually, expressly and voluntarily agreed that the mediation proceedings from beginning to end were to remain strictly confidential. Subsequently, plaintiff and her attorney revealed the terms of the defendant's settlement offer to the media. Defendant filed a motion to strike pleadings and for sanctions contending that plaintiff and her attorney violated the agreement of confidentiality connected with the mediation conference. Trial court found that plaintiff and her attorney violated section 44.102(3) and dismissed plaintiff's complaint with prejudice. The trial judge concluded: "Therefore, this Court finds that the Plaintiff's and her attorney's egregious and flagrant disregard of the confidential stipulation arising out of a court ordered mediation merits striking of Plaintiff's pleadings. There is no less onerous sanctions available to penalize such hubris. To hold otherwise would make a mockery of alternative dispute resolutions and encourage such action in future cases." [CONFIDENTIALITY-SANCTIONS]

  12. PHYSICIANS PROTECTIVE TRUST FUND V. OVERMAN, 636 SO. 2D 827 (FLA. 5TH DCA 1994) HELD: Imposition of sanction on self-insurance trust for failure to send representative to mediation who had authority to settle case. Trial court could consider hardship imposed by requiring all members of Fund to personally appear for subsequent mediation conference. [AUTHORITY\HARDSHIP]

  13. WESTERN WASTE INDUSTRIES OF FLORIDA V. ACHORD, 632 SO. 2D 680 (FLA. 5TH DCA 1994) HELD: Upon learning that defendant had sent someone to mediation without "full authority" to settle, (telephone call made by adjuster to get more $$ to settle case, which settled at Mediation. Plaintiff later tried to set Agreement aside based on "lack of authority without further consultation") party had option to either terminate mediation and seek sanctions for failure to comply with mediation rule and court's order, or to waive violation and proceed to a final mediation agreement. Footnote to opinion states that failure to appear with full authority is equivalent to failure to appear at all. [AUTHORITY-W/O CONSULTATION]

  14. JORDAN V. ADVENTIST HEALTH SYSTEM/SUNBELT, INC., 20 FLW D1221 (FLA. 5TH DCA MAY 19, 1995) HELD: Distinguished the Gordon decision. Where parties signed a two-page, typewritten "preliminary settlement agreement' after spending many hours in negotiations, and parties and their counsel operated under the terms of the agreement while attempting to generate a final document, the trial court properly entered an order enforcing preliminary mediation settlement agreement although the agreement was not signed by party's counsel. Counsel had been present and participated in the entire mediation process, and inexplicably, did not sign the settlement agreement. [SETTLEMENT/SIGNED BY COUNSEL]

  15. TUBBS V. TUBBS, 20 FLW D134, 648 SO. 2D 817 (FLA. 4TH DCA 1995) HELD: Trial court erred in setting aside a mediated settlement agreement in divorce case. During mediation, wife was assisted by an attorney and a certified public accountant, who valued parties' marital assets prior to mediation. At conclusion of mediation, parties, their attorneys, and mediator signed a handwritten settlement agreement, in which wife was to receive 34% of marital assets and alimony for seven years. After mediation, wife changed attorneys and refused to sign typewritten copy of the agreement. District court reversed and remanded the case with instructions to grant the husband's motion to enforce terms of mediation settlement agreement. Under terms of this agreement, husband was to retain possession of parties' home in the Bahamas. [SETTLEMENT-BINDING]

  16. GRAVES V. GRAVES, 20 FLW D237, 649 SO. 2D 284 (FLA. 2ND DCA 1995) HELD: trial court erred in incorporating an oral agreement reached during mediation into a final judgement of dissolution of marriage. During mediation, the parties reached an oral agreement which was recited before a court reporter. At the end of the conference, the wife stated that she was unhappy with the agreement and her attorney. After the oral agreement was transcribed, the wife refused to sign it. Trial court granted husband's motion to enforce the agreement as transcribed. District court reversed the trial court's enforcement of the mediated agreement because it had not been reduced to writing, signed by the parties and their counsel, and filed with the court as rule 1.740 requires. [SETTLEMENT-PARTY MUST SIGN]

  17. KNEALING V PUELO, (FLA. SUPREME COURT, JUNE, (1996) FLW 21 S263. HELD: The shortened time requirements after Mediation for an Offer of Judgment in Florida Statutes 44.102(6)(b) are unconstitutional as an intrusion of the Legislature on the rule-making authority of the Supreme Court.[OFFER OF JUDGMENT]

  18. ONG AND AMLONG V MIKE GUIDO PROPERTIES, (5TH DCA, MARCH 1996) 21FLW 21 D552 HELD: Tolling provisions of Florida Statutes 44.102 (6)(b) pertaining to court- ordered Mediation are unconstitutional. [OFFER OF JUDGMENT]

  19. BAUER V. HARDY, 20 FLW D606, 651 SO. 2D 748 (FLA. 1ST DCA 1995) HELD: Trial court did not make a finding that plaintiffs had the ability to comply with the court's order requiring them to pay the mediator's fee before finding them in contempt. District court held that since the attorney was not a party to the action, he was not required to pay the costs of the mediator's fee. In the absence of sanctions being imposed against an attorney for wrongdoing, attorneys are not obligated to pay their clients' mediation fees. [MEDIATOR FEES]

  20. SINGER V. SINGER, 20 FLW D730, 652 SO. 2D 454 (FLA. 4TH DCA 1995) HELD: Trial court erred in concluding that a provision contained in a pre-dissolution handwritten mediation agreement never went into effect, even though the agreement was entered into evidence at a final hearing and included in the final judgement of dissolution. This handwritten "cohabitation clause" was incorporated by reference into the final judgement. The agreement had been signed by the parties, their counsel, and the mediator. The District court held: "...However, we conclude that once the handwritten document was incorporated into the court's final judgement, it became the order of the court. The agreement was elevated to the status of a judgement to be interpreted rather than a contract to be enforced..." [AGREEMENT - JUDGMENT]


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