Not long ago, I conducted a mediation involving a serious personal injury to a plaintiff. A lot of money was at stake and given the severity of the loss, a jury could reasonably render a verdict in excess of the policy limits.

The plaintiff’s attorney demanded the defendant’s insurance company pay her client the face value of the policy or face a bad faith claim in the event of an excess verdict. To settle the case, the insurance company offered a settlement below, but near the policy limits. In the middle of this tug of war was the insured who simply wanted the case settled to avoid a trial and any risk to his personal assets. Any one involved in litigation knows these dynamics are not only predictable, but common.

The case didn’t settle at the formal mediation, but it didn’t impasse either. Instead, the plaintiff kept her demand for the policy limits open for another two weeks pending further consideration by the insurance company. During this time, the plaintiff’s attorney assumed the insured would continue to persuade the company to settle.

Shortly after the mediation, the plaintiff’s attorney requested that I contact the defendant’s attorney and find out whether he was encouraging the carrier to settle. The insured’s lawyer answered my call and was not shy about expressing his disdain, anger, and bewilderment. “Why are you calling me?,” he asked incredulously. He added, “I know what I’m doing. The mediation is over.” His tone floored me, but he actually his response highlighted a topic which comes up every now and then.

When is the mediation actually over? Does it terminate as the parties storm out of the mediator’s office without a formal agreement? Does it continue until an impasse is declared by the mediator and a form is sent to the court? Is a mediator out of line by making follow-up telephone calls to counsel once the in person mediation is finished? These are legitimate questions.

It’s Over When it’s Over

I’ve heard many a lawyer say that they like mediators who never give up. This “never give up” approach gets cases settled. From a plaintiff’s perspective persistence pays the client and from the defense view it pays the rent.

Florida Statute §44.404 (2012) addresses the duration of a mediation. The commencement is straight forward.

A mediation begins when the court orders it, when the parties agree to mediate, or as otherwise directed by law. Which ever event happens first is when the mediation commences. It’s that simple. So, for all intents and purposes, the mediation begins when the judge signs the order. From that moment all of the rights, obligations, confidentiality and privileges mandated by law are in effect and enforceable.

The statute also answers the question of when a mediation terminates. A mediation ends when one of four events occur.

1. A mediation terminates when the parties sign a partial or complete settlement agreement. The agreement must be one which they intend to resolve the dispute and end the mediation. If, however, the agreement is one which must be brought before the court for approval, the mediation ends when the court approves the agreement. An example of this might be a settlement involving an incompetent party where a guardian has been appointed.

2. A mediation also terminates when the mediator reports an impasse to the court or the parties. It is important to note that while the mediator must send a notice of impasse to the court, an impasse occurs when the mediator informs the parties of one during the formal mediation.

3. A mediation will also terminate upon a court order, court rule or other applicable law.

4. Finally, so long as the parties comply with the court order by appearing at the mediation, they may terminate the mediation by their own agreement. However, if the mediation involves multi-parties and one party gives written notice to all the others that it no longer intends to participate in the mediation, the noticing party may withdraw. Termination, under these circumstances, effects only the withdrawing party.

Conclusion

Like a track mete, there is a beginning and an end to a race. Florida Statute §44.404 (2012), defines the start and finish of a mediation. The goal of the race is an amicable settlement with good results typically deriving from hard work, persistence, and patience.

You often have to blast and chip away at a lot of rock to get to the mother lode. Mediation is no different. There is a number amongst all the integers bantered about during the process that the parties are able to live with. It takes an experienced mediator to help them find it and one who never gives up.

P.S. The case settled on the day the final day, and almost at the final minute.