Mediation in the Electronic Age; Physical Presence, Lifelines and Self-determination
The initiation of mediation can occur when it has been ordered by the court, or where the parties voluntarily agree to attend mediation. In each instance, counsel for the parties or the pro se litigant will contact the Mediator to schedule the mediation and confirm the date, time and location. If court ordered, or simply by voluntary agreement of the parties, various rules will govern the mediation process depending on the type of mediation. (i.e. Circuit, County, Family, Dependency, etc.)
Mediation in the Electronic Age
This article will explore the applicable rules and issues in mediation concerning a party or representative’s appearance at mediation by electronic means and applicable rules and issues that may arise during the mediation when there is a “request” for further consultation with a non-party participant. (emphasis supplied)
Fla. R. Civ. 1.720 (b) in part indicates that the appearance of a party at the agreed upon mediation occurs when the party or party’s representative having full authority to settle without further consultation, and the party’s counsel of record, if any, are physically present. (emphasis supplied)
Telephonic Appearance
First, if there is a request to appear telephonically, the Mediator should confirm that the order, joint-stipulation or agreement authorizes the party or representative to appear in such a fashion. The Mediator should not assume it was expressly addressed in the order, joint-stipulation or agreement. If it was not, then the Mediator should notify the parties that telephonic appearance can occur when proper authorization has been obtained. One role of the Mediator is to ensure that proper procedures are followed with respect to the mediation. Once the Mediator confirms that telephonic appearance is authorized, it would be prudent for the Mediator to take the time to determine if there exist any potential logistical issues or impediments that may result from a party or its representative’s lack of “physical presence” at the mediation. For example, if counsel for a party will be appearing telephonically, but his or her client will be physically present at the mediation, it may be wise to determine in advance the type of communication equipment that will be available, obtain primary and backup phone numbers, fax numbers and e-mail addresses and consider how discussions and caucuses will be conducted telephonically.
Importantly, an early evaluation of how effectively the mediation can be carried out, with one or more parties or counsel not being physically present, may be helpful in the long run. Such an evaluation will of course depend on any information submitted in advance by the parties, including mediation summaries. Addressing these logistical issues in advance can avoid potential delays or even the need to reschedule the mediation at the last minute.
Use of Cell Phones
Another important issue and potential problem that can arise is the use of cell phones to communicate with persons who are not parties to the dispute. This may occur during caucuses or at a point in time where critical decisions are being considered by a participant with respect to proposed settlement terms or conditions.
As the Mediator, a situation may occur where you observe during the mediation a party’s hesitation and uncertainty as to one or more issues. Unable to obtain for whatever reason, a level of comfort from counsel who has appeared telephonically or is present at the mediation, the party expresses the desire to call a friend, family member or confidant in order to discuss the issue(s) further. As the Mediator, you must determine whether it is appropriate to permit the call, knowing that the individual to be called is not a party, a representative or person that has been authorized to participate in the mediation.
The first question to be explored is: Have the parties agreed that there may be a communication with someone not present at the mediation? The parties have already agreed to permit counsel or parties to appear by telephone, but calling an outsider may not have been contemplated. As well, the Mediator may not have raised this issue before the mediation or when discussing the ground rules during the opening of the mediation session. Mediations are confidential, so at first it would appear that such a call may be problematic. However, the issue has been addressed in several MEAC (hereinafter “Mediator Ethics Advisory Committee”) Opinions’ including the following: 2006-07, 2008-006, 2010-14 and 2011-012.
One of the core principles of mediation is that of self-determination. This principle requires that mediation be conducted in an atmosphere that enables the parties to reach a settlement on their own agreed upon terms and conditions. A Mediator’s decision to prohibit a party from communicating with whomever they choose during a mediation session would be in conflict with a party’s right to self-determination. The above referenced decisions issued by MEAC suggest that since the attendance of a “non-party” does not impact the confidentiality or privileged nature of mediation communications pursuant to Section 44.405, Fla. Stat., a mediator cannot exclude a non-party, but should tell the party , as well as the non-party that they are bound by the confidentiality requirements contained in the statute and rule. However, the opinions also point out that although there may be no violation of confidentiality due to a non-party’s presence or participation, if another party objects, the Mediator may attempt to resolve the objection. In the event the Mediator is unable to do so, the only viable alternative maybe to adjourn or terminate the mediation in instances where the party indicates that they will not continue without the involvement of the non-party or the Mediator concludes that the party will be unable to participate meaningfully in the process.
In MEAC Opinion 2011-012 the Committee addressed a question raised by a Mediator that concerned confidentiality and the ever increasing use of cell phones by parties during caucuses to call “family, friends, pastors, etc.” The Committee determined that Mediators could not unilaterally ban the use of cell phones during mediation, based once again, upon self-determination principles.
The Committee in its findings determined, as follows: “Ultimately, all parties to mediation have the ability to jointly and unanimously decide whether it is acceptable for anyone participating in the mediation to communicate with someone who is not present at the mediation. Mediators may wish to consider addressing the use of cell phones or a texting device in their opening orientation by obtaining agreement as to the use of such devices and further reminding parties that mediation confidentiality applies to all mediation participants, whether present in person or by electronic means”.
Conclusion
The core principle of “Self-determination” in the mediation process can be best achieved where the Mediator confirms procedural compliance, addresses logistical issues well in advance of mediation and is familiar with cutting edge issues affecting the mediation process in Florida.
Brian P. Battaglia, Esq. of Brian P. Battaglia, P.A. and Bay Mediations is a Florida Supreme Court Certified Circuit, Family and County Court Mediator and practices in the areas of Civil Litigation, Labor and Employment Law and Health Law.