PBCBA BAR BULLETINS 0817 PB Bar Bully Sept PRINT - Page 21

ADR Corner
Is Your Mediator Certified? Does it Matter?
by William Cea
There are significant differences
between the rules that apply to certified
and court-appointed mediators, and non-
certified mediators. In fact, that’s the point.
The rules don’t apply to non-certified/non-
court appointed mediators. When choosing
a mediator, consideration should be given to the differences. As
demonstrated by a robust debate during the ADR Session at the
recent Bench Bar Conference, there are different points of view
on the subject.
The Rules for Certified and Court-Appointed Mediators are
found at Section 10.100 et. seq. (“Rules”). Generally, the Rules
provide for Mediator Qualifications, Standards of Professional
Conduct, and Discipline. “Certified mediator” means the
mediator has been certified by the Florida Supreme Court,
after completing an initial mandatory training, which includes
formal instruction in ADR techniques, and ethics, as well as
observation of mediation sessions conducted by experienced
certified mediators. Certified mediators are also required
to fulfill continuing education requirements. This training
includes areas such as diversity, domestic violence, and ethics.
Applications for re-certification must also be submitted to the
Florida Supreme Court through the Dispute Resolution Center
on a bi-annual basis. The Rules provide for different areas of
certification, including: County Court, Family, Circuit Court,
Dependency, and Appellate.
Generally, the Rules prohibit certified or court appointed
mediators from mediating a matter where the mediator has a
clear conflict, coercing the parties, or giving legal advice. The
Rules further mandate impartiality and neutrality on the part
of the mediator. The parties’ right to self-determination is a
fundamental concept provided by the Rules. Accordingly, when
selecting a mediator, consideration should be given to the type
of case and the parties. If your case involves parties who would
be offended by being “strong armed” or by an apparent bias
towards one side’s position, then you should select a certified
mediator. There is a proposal to require use of a certified
mediator for any pending litigation, however, it is unclear
whether that will be adopted.
Rule 10.310, Self-Determination, is one that I recommend
reading to better understand the role of a certified or court
appointed mediator. Rule 10.310 is clearly intended to ensure
that the parties are the ultimate decision makers. The Committee
Notes, in pertinent part, state: “Mediation is a process to facilitate
consensual agreement between the parties in conflict and to assist
them in voluntarily resolving their dispute….While mediation
techniques and practice styles may vary from mediator to
mediator and mediation to mediation, a line is crossed and ethical
standards are violated when any conduct of the mediator serves
to compromise the parties’ basic right to agree or not to agree.”
[Emphasis added].
The above does not mean that the mediator should simply go
back and forth between rooms as a messenger. A good mediator
can balance the rights of the parties and the process, while at the
same time assisting the parties by identifying obstacles that need
to be overcome and opportunities for settlement. On the other
hand, some attorneys with sophisticated clients may want more
of a substantive expert who can offer opinions and exert greater
influence on the outcome. The participants should, however,
understand that also means that a non-certified mediator is not
subject to the Rules or disciplinary action for misconduct.
Thus, when selecting a mediator, counsel should give
serious consideration to the differences between certified and
non-certified mediators, and the type of mediator that best fits
the case. If your client would be frustrated or offended by a
mediator taking sides or coercing a settlement, then selecting a
certified mediator will reduce the chances of such frustration. We
are fortunate in Florida to have a set of rules, ethical standards
and regulation of certified mediators. The mandatory training,
continuing legal education and re-certification requirements are
all intended to facilitate a fair and impartial process, aimed at
giving the parties an opportunity to craft a settlement free of
undue influence and pressure.
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September 2017
Page 21