“Would Have, But . . .” “Should Have, But . . .” “Could Have, But . . .” – “Didn’t!”
In the case of Leff and Physicians Financial Consultants Corporation v. Ecker, M.D., 33 Fla. L. Weekly D 29 [Fla. 3rd DCA 2007], the plaintiff went into the mediation conference without a clear picture of what the policy limits were for the incidents in question. This was plaintiff’s first question at mediation. Notwithstanding this limited knowledge, plaintiff chose to go ahead with the mediation and entered into an agreement at the end of mediation. Despite his admitted suspicions about the policy limits, plaintiff made the decision to enter into the agreement.
The Defendants filed a motion to enforce the mediated settlement agreement. The Plaintiff argued that a “mutual mistake” allowed him to avoid the parties’ mediated settlement agreement relying on the legal principle that a party may avoid a contract by proving mutual mistake regarding a basic assumption underlying the contract. [COMMENT: Nice try, because. . . !]
The appellate court opined that to prevail on this basis the party must also show he did not bear the risk of a mistake.
A party to an agreement bears the risk of mistake when “he is aware, at the time the contract is made, that he has only limited knowledge with respect to the facts to which the mistake relates but treats his limited knowledge as sufficient. [COMMENT: This is important for mediators to know – i.e., it will help you ponder and formulate good mediation questions!]
The doctrine of mutual mistake was not created to relieve litigants of agreements entered into improvidently. The all-out efforts plaintiff later engaged in to go behind the policy and ascertain, without question, what policies applied and what policy limits were, could have been performed before the mediation. [Emphasis in bold added. COMMENT: Imagine that!]
The appellate court reversed the trial judge and remanded the case for the entry of an order enforcing the settlement agreement.
“And You Thought It Was Final!”
In Lahodik v. Lahodik, 969 So.2d 533 [Fla. 1st DCA 2007] the Father appealed the trial court’s order, which modified the parties’ mediated settlement agreement to award temporary child support to the Mother during the pendency of modification proceedings, as well as the order which modified the children’s custody.
The Father argued on appeal that, because the parties previously established their child support obligations through the mediated settlement agreement, the trial court was precluded from awarding temporary child support based on the “Law of the Case” doctrine. [COMMENT: This was not even a good try and you’ll see why and what the consequences were!].
The appellate court explained this doctrine:
The “Law of the Case” has been defined as meaning “whatever is once irrevocably established as the controlling legal rule of decision between the same parties in the same case continues to be the ‘law of the case,’ whether correct on general principles or not, so long as the facts on which such decision was predicated continue to be the facts of the case before the court.” [Emphasis in the opinion.]
The mediated settlement agreement placed the children with the Father and required the Mother to pay child support. However, subsequently the children were placed with the Mother upon the Father’s request due to a DCF complaint filed against him. [COMMENT: So, have the facts changed?!?] Since the children were now with the Mother, the trial court abated her child support obligation and ordered the Father to pay her temporary child support.
The appellate court continued:
[A]ppellant knew or should have known the facts upon which the parties’ settlement agreement was based had changed. . . . Consequently, Appellant knew or should have known his argument based on the law of the case doctrine was completely lacking in legal merit.
[COMMENT: Any sanctions here?!? You bet!] The appellate court concluded:
“The trial court’s orders are AFFIRMED, Appellee is awarded appellate attorneys’ fees, and the case is REMANDED to the trial court to determine a reasonable fee.
The First District Court of Appeal found that the attorney, who asked the appellate court to re–weigh facts found by the trial court which were supported by competent, substantial evidence, failed in their obligation to the client, the court and risked the imposition of sanctions. [COMMENT: Appellate courts do not re–weigh evidence, witness credibility nor do they retry the case.]
A Mediator’s Report to the Court Has Consequences!
[COMMENT: Florida Rules for Certified & Court-Appointed Mediator, Rule 10.510 Information to the Court provides:
A mediator shall be candid, accurate, and fully responsive to the court concerning the mediator’s qualifications, availability, and other administrative matters.]
Among the administrative matters is the report mediators file with the Court about the mediation. The significance of this report is found in Campos v. City of Naples, et al., 202 Fed. Appx. 381 [11th Cir. 2006]. The Plaintiff was a prisoner who filed a pro se federal civil rights complaint in the U.S. District Court for the Middle District of Florida against the Defendants [counsel was later appointed to represent him]. The Defendants’ appeal involved a challenge to an award of sanctions.
Prior to trial, the District Court entered an order granting Defendants’ motion for summary judgment and dismissing the case. In the same order, however, the District Court sua sponte sanctioned Defendants and their counsel for their “recalcitrant actions,” in the conduct of the defense.
For example, although acknowledging that the defense motion for summary judgment was filed two days prior to the deadline established by the court’s own scheduling order, the trial judge characterized it as an “eleventh hour” filing. The trial judge then speculated that this “lack of due diligence” might have been “aimed at generating increased legal revenues at the expense of taxpayers.” Finding the Defendants’ “handling of this matter was unprofessional,” and an “abuse of the judicial process,” the trial judge awarded $3,786.62 to plaintiff’s court–appointed counsel to offset the “costs unnecessarily incurred by [them] in prosecuting this action,” and ordered the Defendants to pay within five days. Plaintiff was ordered to file a motion for contempt of court should Defendants fail to timely comply.
The Court of Appeals determined that the Defendants in this case did not violate any court rule, court deadline, court request, or other court requirement that would justify the imposition of sanctions. Among the factually inaccurate assertions upon which the trial judge relied in imposing sanctions was that:
[C]ounsel failed to appear personally at mediation. The court appears to have relied upon a faulty mediator’s report for this incorrect assertion.[Emphasis in bold added.]
[COMMENT: All to say, please remember that all of our actions as mediators have consequences! Our ethical obligations run simultaneously to the parties, the process, the courts and the profession – indeed, we have a lot to keep in mind!]
© 2008 Perry S. Itkin All Rights Reserved. [Used with permission of the author.]
Perry S. Itkin, Esquire
Dispute Resolution, Inc.
2200 NE 33rd Avenue, Suite 8G
Fort Lauderdale, FL 33305-1889
954-567-9746
E-mail: PerryItkin@MediationTrainingCenter.com
Florida Mediator Blog: http://floridamediator.blogspot.com/
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