The unspoken rule is that lawyers have to profess an affection for mediation. Naysaying runs counter to mediation’s self-professed mantra to “just give it a chance”. And it’s true, you don’t know until you try. But, we usually have a good idea.
In Florida, in most civil cases in which the parties cannot resolve their differences themselves, the court will eventually refer the case to mediation. And sometimes it works. The parties each take a hit, accept more or less than they wanted to, and go their separate ways. But this is often not the case. For a variety of factors, mediation may be, well, pointless. The parties may not yet be appropriately “softened up”, it may be more of a “winner takes all” type of case, or a party simply has nowhere near the money needed to make a meaningful settlement offer. What to do if you don’t want to mediate, or want to, just not until later?
Pursuant to Florida Rule of Civil Procedure 1.700, any party may, within 15 days after the order of referral, move to dispense with mediation or arbitration if:
(1) the issue to be considered has been previously mediated or arbitrated between the same parties pursuant to Florida law;
(2) the issue presents a question of law only;
(3) the order violates the rules pertaining to exclusions from mediation or arbitration; or
(4) other good cause is shown.
Any party may, within 15 days of the order of referral, file a motion to defer the proceeding. The motion must set forth in detail the facts and circumstances supporting the motion, set the motion to defer for hearing prior to the scheduled date for mediation or arbitration, provide notice of the to all interested parties, including any mediator or arbitrator who has been appointed. Mediation or arbitration will be tolled until the disposition of the motion.
Subsection (4) is of interest because it is open-ended. What is “good cause”? I can’t find a single case construing “good cause” in the context of Rule 1.700(c). But, I would argue that a belief that compromise is very unlikely and mediation a waste of time could be good cause.
Don’t get the wrong impression. In the right circumstances, mediation is great. It takes pressure off the courts and resolves some cases. My point is that in some cases, the parties are too far apart, or there can be little to no compromise (e.g. an eviction). In those cases, mediation may not waste the court’s time, but it may waste the parties time, and their money.
Attorney Aaron Thalwitzer practices law in Melbourne, Brevard County, Florida in the areas of civil litigation, real estate law, and intellectual property.