ADR CORNER
ADR CORNER
Mediation in 2026 After SB 2A and HB 837: How Florida’ s Insurance and Tort Reform Has Reshaped Settlement Ranges and Strategy
MARK GREENBERG
MERRYL S. HABER
Florida’ s litigation landscape has undergone a seismic shift since the passage of SB2A on December 16, 2022 and HB 837 on March 24, 2023. Now, the practical effects of this tort reform are fully visible in mediations throughout the state.
As mediators who spent more than six decades combined litigating civil cases before transitioning to full time mediation, we have seen firsthand how these statutory changes have altered the way attorneys calculate settlement ranges, evaluate risk, and approach negotiation.
Understanding these shifts is essential for any attorney seeking to negotiate effectively.
I. Elimination of One Way Attorney’ s Fees: A New Risk Calculus
Before SB 2A and HB 837, plaintiffs’ attorneys in first party property cases could rely on one way attorney’ s fee statutes to create leverage. The possibility of fee entitlement often expanded the settlement range because insurers faced the risk of paying not only damages but also the plaintiff’ s fees if the plaintiff prevailed. That leverage is now gone.
A. Narrower Settlement Ranges
Without the threat of fee shifting, defendants no longer face the same“ double exposure.” Their risk adjusted settlement authority tends to be lower, and plaintiffs must evaluate cases based solely on recoverable damages.
B. Greater Emphasis on Early Case Valuation and Proposals for Settlement
Plaintiffs’ attorneys can no longer rely on the prospect of fee recovery to justify prolonged litigation. Many are conducting more rigorous early case assessments, including liability analysis and damages assessment, and filing more strategic PFS, because the economics must stand on their own.
C. More Conservative Plaintiff Demands
In mediation, strategic plaintiffs are anchoring closer to true case value rather than inflating early numbers to account for anticipated fee recovery. This has led to more realistic opening positions and, in many cases, the potential for faster movement toward the zone of agreement.
II. Modified Comparative Fault: A Rebalanced Leverage Structure
HB 837’ s shift to modified comparative negligence( barring recovery when a plaintiff is more than 50 % at fault) has become one of the most significant drivers of mediation strategy in negligence and premises liability cases
A. Increased Liability Challenges by Defendants
Defense counsel frequently argue that the plaintiff’ s fault exceeds the 50 % threshold, dramatically reducing the plaintiff’ s bargaining power. Even in shared fault cases, the possibility of a complete bar to recovery influences risk and therefore settlement ranges.
B. Earlier and Stronger Liability Rebuttals by Plaintiffs
Plaintiffs are entering mediation with more robust liability packages with photos, witness statements, and sometimes expert opinions to counter the“ 51 % defense.”
C. More Polarized Settlement Ranges
Admitted liability cases often still settle within traditional ranges. But disputed liability cases now show wider valuation gaps, making the mediator’ s role in reality testing even more critical.
III. Mediation Timing: A Shift Toward Earlier Resolution
One of the most notable trends since the
reform is a shift in when parties choose to mediate.
A. Growth in Pre Suit Mediations
The absence of fee exposure means both sides have more incentive to resolve disputes before litigation costs accumulate.
B. Mediations After Key Disclosures
In litigated cases, mediation often occurs soon after expert reports or critical depositions, when both sides have enough information to evaluate risk but before trial costs really escalate.
C. Decline in Late Stage Mediations
With fee shifting gone and comparative fault heightened, the incentive to“ wait it out” has diminished. Parties are more willing to mediate earlier because the cost benefit analysis has changed.
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PBCBA BAR BULLETIN 8