Mediation Tip: Amending Trial Orders

Mediate at the Right Time

This mediation tip is a follow-up to my last tip on scheduling mediation. The idea is that doing the right thing at the wrong time is not helpful. For mediation, that means having your mediation at the right time when the parties are ready to mediate.

When are the parties ready to mediate? Whenever the parties have sufficient information to make informed decisions. Typically this means when the parties can evaluate their positions and are able to conduct a risk analysis. In short, the parties need to know their options and the relative risks associated with each option.

Case Management and Trial Orders

The Florida Supreme Court has made it a priority to reduce the burgeoning dockets of Florida Courts. Speed and efficiency are the stated goal since justice delayed is justice denied.

As it stands, all Judicial Circuits in the State of Florida issue case management and trial orders that set deadlines for certain procedural matters for a case. In this way, separate deadlines are established for when discovery must be complete, mediation scheduled, experts named, dispositive motions filed, and when the case should be ready for trial.

There are twenty different Judicial Circuits in the State of Florida, but there is no uniform case management or trial order that all the Judicial Circuits use. Even within a particular Judicial Circuit, some Judges may use their own case management and trial orders. The result is that you can have wildly divergent deadlines for the various procedural stages of a case depending upon what Judicial Circuit or even Judge you have for your case.

The Problem with Case Management and Trial Orders

All too often, the various case management and trial orders require mediation to occur within a certain amount of days from the issuance of the case management or trial order. Most of the time, the result is that mediation is scheduled before discovery is complete or experts are disclosed.

Why is this a problem for mediation? Because if discovery is not yet complete or if experts are not disclosed, the parties are missing critical information in order to fully evaluate their case. Without this critical evaluation, the parties are not able to make informed decisions at mediation.

There are simply too many unknowns, and the parties are left to guess or speculate as to certain critical components of a case, including liability or damages. In this instance, the parties cannot meaningfully conduct a risk analysis, and their ability to mediate is undermined.

Mediation, at this point, can end up being a mere formality, a check-the-box process. No meaningful negotiation can take place. Issue discussion is at a minimum. High demands meet low offers. The result is frustration, disappointment, and a lack of efficiency.

This is not my declaration. This is the feedback that I am routinely receiving from all lawyers in the same mediation. Not just Plaintiffs or Defendants but from both sides. This is a problem. And a curious problem indeed when the purpose of mediation is to assist in the resolution of legal matters so judicial efficiency and economy can be improved.

Amending Case Management and Trial Orders

Until a uniform case management and trial order is established in Florida that provides for mediation taking place after discovery and the disclosure of experts, the solution for lawyers is to file a motion to amend the case management and trial order.

Nothing prevents lawyers from filing a motion to amend a case management or trial order. Such a motion would simply request that a mediation deadline be after discovery and expert disclosure deadlines. The basis for such a motion is to enhance the prospect of settlement when the parties are in a better position to evaluate the case for mediation. Filing such a motion jointly with your counterpart will be a powerful statement that it is being taken in good faith and not for the purpose of delay.

Entertaining a motion to amend a case management and trial order is within the sound discretion of the Judge. However, it would seem that when framed properly, it would be in everyone's interest to amend the case management and trial order if it could lead to a resolution of a case without additional Court resources or time.

The Takeaway

No one wants to participate in a meditation that is pointless. Florida Courts recognize the benefits of mediation for helping to resolve disputes and reduce Court dockets. To maximize the utility of mediation, the parties should seek to amend case management and trial orders so that mediation is at the right time. Everyone benefits when mediation is at the right time and is meaningful.

Less conflict, more resolution.