ADR Corner
ADR Corner
Self-Determination is Paramount to Mediation
WILLIAM J . CEA
To settle or not to settle ? Only the parties can answer that question at mediation . For mediation , voluntary and informed decision making or “ self-determination ” is the paramount consideration . The Florida Rules for Certified and Court-Appointed Mediators reflect the importance of preserving the parties ’ right of selfdetermination throughout the mediation process . Understanding this principle will help both mediators and attorneys prepare and participate in the process .
Rule 10.310 , Self-Determination , states in pertinent part : “( a ) Decision-Making . Decisions made during a mediation are to be made by the parties . A mediator shall not make substantive decisions for any party . A mediator is responsible for assisting the parties in reaching informed and voluntary decisions while protecting their right of self-determination .” The discussion in this article presumes that the parties have the capacity . It is worth noting , however , that a mediator shall cancel or postpone a mediation if a party is unable to feely exercise self-determination . See , Rule10.310 ( d ).
So how can a mediator safeguard the process and rights of self-determination ? First , the mediation should afford enough time for the parties to make a meaningful decision . Rule 10.430 , for example , requires the mediator to “ schedule a mediation in a manner that provides adequate time for the parties to fully exercise their right of self-determination .” Clearly , not affording sufficient time or scheduling the mediation later in the day could set the parties up for added pressure and duress .
Because of this , I generally prefer mediation to commence in the morning . Further , even if the parties believe that only a half day is needed , the mediator should anticipate the need for more time . It is also worth noting that parties oftentimes want to work through lunchtime . If that is the case , the parties should discuss how lunch will be handled in advance . It will not help the process if the parties are hungry or feel rushed . The same holds true at the end of the day . In particular , parties are often tired and hungry by the time a mediation agreement is being drafted . If there is insufficient time to properly prepare and meaningfully review an agreement , an adjournment must be considered . See , Rule 10.420 ( b )( 1 ).
Beyond the logistics , the parties are entitled to reach an informed and voluntary decision . Again , this takes time . While a mediator cannot make decisions or substitute his or her judgment for the parties , the mediator is responsible to ensure that the parties are informed . This may be accomplished by asking probing questions , facilitating the exchange of information between the parties , and ensuring sufficient opportunity for the parties to discuss new information and options with their counsel . In other words , a mediator should ask questions geared towards aiding the parties ’ thought process without suggesting an outcome or answering the questions . Otherwise , how do you know if the party is making an informed decision ?
While a mediator should not offer an opinion on how a court may rule , a meaningful discussion of possible outcomes , and the merits of claims and defenses is part and parcel of the process . It may be that a party only knows its side of the case . Explaining what the other side ’ s claims , defenses or positions are is a means to make sure the party is fully informed . Similarly , there is nothing prohibiting a mediator from providing information so long as it is not intended to coerce the party or serve as legal advice .
Similarly , questioning a party ’ s understanding of what issues will be tried before the Court , the relief that may or may not be available , complexities presented with enforcement of proposals for settlement and the like are all topics that a mediator may want to explore with the parties . Depending upon the case , another area that routinely requires discussion is insurance coverage . Parties oftentimes presume that the presence of an adjuster means that a big payment is available . To the extent of the mediator ’ s training and experience it is permissible to explain that there are different types of coverages , and question whether the party understands the distinction between defense coverage and indemnity coverage . In my experience ,
PBCBA BAR BULLETIN 6 whether and to what extent coverage exists for a claim is a prime example of the information that a party may need to know in order to make a meaningful decision .
For example , in a construction case , parties often confuse liability insurance with performance bonds . One covers the consequences of work , while the latter provides coverage for the completion of a project , and potentially warranty rights . Plaintiffs may assume that if a contractor has liability insurance it covers poor workmanship , when it generally does not .
Of course , each mediation and decision must be made on a case by case basis . Giving thought to scheduling and the sufficiency of time , sufficiency of the information provided to the parties , and discussing the “ what if ’ s ?” are all important considerations for a mediator . While it may be the parties ’ case , Rule 10.400 provides that it is the mediator ’ s obligation to safeguard the process . The right of self-determination is at the heart of the process .
For additional ADR tips and resources , go to http :// www . palmbeachbar . org / adr /
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