Ed Ahrens, Jr., Esq. writes monthly thought provoking Editorials on mediation. These views are Ed's and do not necessarily reflect those of Florida Mediation Group.

I had a mediation the other day that raised some troublesome questions about how familiar attorneys are with the U. S. District Court-Southern District rules for mediation.

One side of this mediation delivered its ten-page summary of the case on the morning of and prior to the mediation. It was labeled "Confidential." The other side, at the commencement of the proceeding, handed the mediator and opposing counsel copies of three documents totaling forty-eight pages.

Okay, you ask, what's wrong, Mr. Mediator? You received your summaries. What's the beef?

Here is the beef.

Most attorneys understand that the Florida rules do not mandate the submitting of summaries prior to a mediation. It is not a bad idea, of course, to do so in all mediated matters, especially where the mediator might benefit from an overview of a case involving complex issues of liability and damages.

The rule in the U. S. Federal District Court-Southern District is quite different. Rule 16.2 includes the form of Order of Referral to Mediation issued by the Court. Paragraph 6 states:

At least ten days prior to the mediation date, all parties shall present to the mediator a brief summary of the case identifying issues to be resolved. Copies of these summaries shall be served on all other parties.

Now you see the beef? In my case, for example:

1. Both sides violated the ten days requirement. The consequence was that no one, including this mediator, had an opportunity to adequately study the summaries;
2. Almost fifty pages is not brief. I'll concede that most of these pages consisted of supporting documents, however, they still had to be reviewed, which takes us back to (1); and
3. The confidential summary to only the mediator violated the requirement to send a copy to opposing counsel.

Before someone accuses me of being a stickler for a rule that is so often breached, understand that, if the mediator either does not receive a summary or receives it late, the time wasted by the mediator to fully grasp the nature of a complex case or to study a summary is time charged to the parties. Worse, the effective participation by the parties and mediator in the mediation, even the ultimate outcome, can be affected. (The mediation in question ended in an impasse.)

Mediators pride themselves in conducting efficient mediations at a reasonable cost to the parties. Hard to do that when participants are handicapped by insufficient or untimely information.

Also, attorneys who ignore these instructions by the federal courts expose themselves to complaints by opposing counsel who may not be above exploiting a procedural violation to their advantage.

So, in summary, summarize. Listen to the judge and, when in federal court, familiarize yourself with and follow the rules. Not a bad idea to do so in state courts as well.

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