FRCP 1.720 and most court orders require parties to appear at mediation with “full authority” to settle without further consultation. See also Carbino v. Ward, 801 So.2d 1028 (Fla. 5th DCA 2001) and Physicians Protective Trust Fund v. Overman, 636 So.2d 827 (Fla. 5th DCA 1994).
A hypothetical personal injury case will be used here to illustrate the importance and meaning of the law:
The plaintiff’s last demand before mediation was $500,000, while the defendant has valued the case at $75,000. For the defendant to be in compliance with Rule 1.720, its representative must attend mediation with the authority to settle for $500,000 (or policy limits, whichever is less). This does not mean that the defendant must accept plaintiff’s demand. All it means is that the representative must have the authority to pay $500,000 without further consultation. (The rule is less clear as it relates to plaintiffs, especially when the defendant has not made a pre-mediation offer, but it is arguable that the plaintiff or its representative must be able to accept any proposal made by the defendant without further consultation.)
On its face, the rule may seem silly. However, it makes sense. The purpose of the rule is to encourage and promote the settlement of cases. The rule requires representatives to have flexibility to adjust to circumstances as they arise during mediation, even if it does not require the actual exercise of that flexibility. Without having the requisite “full authority”, a representative is unable to adjust his/her position during mediation. (Examples of circumstances that sometimes motivate parties to alter their views during mediation are endless. Some of the more common examples include: the presentation of explosive eyewitness affidavits; the surprise appearance of a newly-hired heavy-hitting top-gun trial lawyer in place of an inexperienced attorney; the surfacing of key missing documents; new test results; et cetera.)
Sanctions for failing to attend mediation with “full authority” include the award of attorney’s fees and costs.
EXCEPTION TO THE “FULL AUTHORITY” RULE: Public entities operating pursuant to chapter 286, need only have a representative present with “full authority to negotiate on behalf of the entity and to recommend settlement to the appropriate decision-making body of the entity.” See FRCP 1.720(b). The representative will not have authority to enter into a binding agreement nor does the “appropriate decision-making body of the entity” have to accept its representative’s recommendation.
Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals – the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.
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