COMMENT: As you know, we have an ethical obligation to “cause the terms of any agreement reached to be memorialized appropriately and discuss with the parties and counsel the process for formalization and implementation of the agreement.” Rules for Certified and Court-Appointed Mediators, Rule 10.420(c) ( Conduct of Mediation, Closure).
In the case of Griffith v. Griffith, 860 So.2d 1069 [ Fla. 1 st DCA 2003], the former husband sought review of a final judgment of dissolution entered by the trial court that denied the husband’s motion to enforce a mediated separation and property settlement agreement and went on to forge new child support provisions contrary to those included by the parties in their earlier agreement. The court also set aside the alimony provisions agreed upon by the parties. Because the order on review failed to set forth any sufficient cause to abrogate the parties’ separation agreement, the appellate court reversed the trial judge with instructions to approve the agreement.
The wife, a successful medical doctor, earned an average salary in the three years before the dissolution of over twenty times that earned by the former husband, who the parties agreed would attend to the care and needs of the children rather than advancing his own earning ability. During a second mediation session, the parties reached an agreement as to alimony, child support, and custody. They agreed to joint custody of their three children, with neither designated a primary custodial parent. Dr. Griffith's attorney drafted a written document entitled “Separation and Property Settlement Agreement” to memorialize the settlement. Following execution by both parties, the lawyers filed the agreement with the court.
At the uncontested final hearing, Dr. Griffith apparently told the judge she was not sure if she could comply with the settlement agreement. The court declined to grant final judgment, prompting the husband to seek temporary support and also to file the motion to enforce the settlement agreement. At the hearing on these matters, the trial court granted temporary support to Mr. Griffith, but again refused to enter a final judgment, concluding that an evidentiary hearing would be necessary to determine if the agreement was in the best interest of the minor children. The court then conducted a series of evidentiary hearings during the summer of 2002, after which it entered the order on appeal.
In the final judgment, the trial court modified the parties’ agreed-upon provisions for child support and rehabilitative alimony. The primary challenges on appeal were the trial court’s refusal to uphold the child support and alimony provisions of the settlement agreement.
From agreement drafting [remember, the agreement was drafted by the former husband’s lawyer], as well as mediation process, perspectives, the appellate court focused on certain “acknowledgement” provisions directly relevant to mediation process and mediators:
“ WHEREAS, in view of the parties’ intentions to live separate and apart from each other permanently, the parties having reached an agreement through mediation with certified family law mediator [named], the parties desire to settle equitably all matters of child custody, child support, alimony, division of property, and all other claims each may have against the other arising from the marital relationship; and
WHEREAS, the parties hereto have been fully, separately, and independently apprised and advised of their respective legal rights, remedies, privileges, and obligations arising out of the marriage relation and otherwise, and each having, in addition thereto, made independent inquiry and investigation with respect to all of the same, and each having been fully informed of the other's assets, property, holdings, income and prospects; and
WHEREAS, the parties hereto each warrant and represent to the other that they, and each of them, fully understand all of the terms, covenants, conditions, provisions and obligations incumbent upon each of them by virtue of this Agreement to be performed or contemplated by each of them hereunder, and each believes the same to be fair, reasonable, and to his or her respective individual best interest.
20. The parties acknowledge that they are entering into this agreement freely and voluntarily; that they have read each page of the agreement carefully before signing same; that they have ascertained and weighed all the facts and circumstances likely to influence their judgment herein; that they have sought and obtained legal advice independently of each other; that they have been duly apprised of their respective legal rights; that all the provisions hereof, as well as all questions are clearly understood and both parties assent to all provisions herein.”
Here’s how the appellate court viewed the impact of the mediator and the process of mediation:
One could hardly overstate the definitive quality of these acknowledgments, particularly between very well-informed persons such as these parties, and particularly in the context of a mediation settlement agreement reached under the auspices of a certified family law mediator and reduced to writing by appellant's attorney. [Emphasis added.]
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Finally, mediation and settlement of family law disputes is highly favored in Florida law. The Florida Family Law Rules of Procedure provide for mediation of all contested family matters, except as provided by law, and also provide for expedited mediation of family issues. See Fla. Fam. L.R.P. 12.740(b). Moreover, once a mediation agreement is reduced to writing, as was the case here, “absent a timely written objection, the agreement is presumed to be approved by counsel. . . .” Fla. Fam. L.R.P. 12.740(f)(1). The standard for disregarding a settlement agreement between the parties is high. [Emphasis added.]
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[T]he court should have applied the general rule: “The inquiry on a motion to set aside an agreement reached through mediation is limited to whether there was fraud, misrepresentation in discovery, or coercion.” Crupi v. Crupi, 784 So. 2d 611, 612 ( Fla. 5 th DCA 2001). [Emphasis added.]
The Committee Note to Rules for Certified and Court-Appointed Mediators, Rule 10.420(c) ( Conduct of Mediation, Closure) provides in part:
Florida Rule of Civil Procedure 1.730(b), Florida Rule of Juvenile Procedure 8.290(o), and Florida Family Law Rule of Procedure 12.740(f) require that any mediated agreement be reduced to writing. Mediators have an obligation to ensure these rules are complied with, but are not required to write the agreement themselves. [Emphasis added.]
In preparing agreements, we must also be mindful of the guidance from the Mediator Ethics Advisory Committee in its Opinion 2004-004 that “ [a] mediator may record or memorialize the parties’ agreement but, it is not the mediator’s role to make substantive decisions for the parties. In recording the parties’ agreement, a mediator must observe the ethical rules regarding impartiality, professional advice, and other professions’ standards, such as the unauthorized practice of law.” [More emphasis added.]
Be careful and remember, it’s the parties’ agreement – not the mediator’s!
COMMENT: Since more cases are being ordered by the appellate court to mediation, as you might expect [unfortunately] there have been a series of recent opinions addressing sanctions on the appellate level either arising out of settlements while the case was on appeal or for violations of appellate court orders and procedures regarding appellate mediation. Below are some of those opinions. In mediating cases either on the appellate or trial court levels, these opinions contain valuable information.
In a case of first impression the Second District Court of Appeal in Merkle v. Guardianship of Jacoby, 30 Fla. L. Weekly D 548 [Fla. 2 nd DCA 2005], sanctioned counsel for failing to immediately notify the appellate court of the settlement of a pending case before the court’s decision on the merits. The settlement occurred more than a year prior to the appellate court’s decision. This case actually has 2 opinions with this same Florida Law Weekly cite: the first is the appellate court’s opinion on the Department of Veterans Affairs Motion to Vacate the court’s prior opinion and the second is the appellate court’s opinion on its Order Imposing Sanctions on counsel.
Florida Rule of Appellate Procedure 9.350(a) provides:
Dismissal of Causes When Settled. When any cause pending in the court is settled before a decision on the merits, the parties shall immediately notify the court by filing a stipulation for dismissal.
Mr. Merkle, hereafter referred to as counsel, filed a notice of appeal of a trial court order entered in May 2002 that required him to refund to the Ward’s estate the sum of $3,931.12 that he had previously paid to himself. No one filed an appearance as an appellee in the case. On December 24, 2003, the appellate court issued an opinion reversing the trial court’s order on procedural grounds and remanding the case for further proceedings and a mandate issued on February 3, 2004.
On April 30, 2004, the Department of Veterans Affairs, hereafter referred to as the Department, an interested party in the proceedings in the trial court, filed a motion to vacate prior ruling. The Department suggested that prior to the issuance of the appellate court’s decision, the case had become moot by reason of a “Settlement Agreement”, hereafter referred to as the Agreement, that the Department had reached with counsel more than one year prior to the decision.
Upon receipt of the Department’s motion, the appellate court issued an order directing counsel to respond to the Department's suggestion that the case had become moot prior to the decision on the merits. Counsel’s response disputed the Department’s claim of mootness and raised several factual issues in defense of his reasons for not complying with the Florida Rule of Appellate Procedure.
Among his reasons for not complying were (a) the settlement was conditioned on a collateral agreement [COMMENT: This did not impress the appellate court.]; (b) he was continuing the appeal to gain a perceived advantage in other unrelated matters [COMMENT: Not a good approach!]; and (c) he was inexperienced in appellate matters [COMMENT: This helped a little.]. The court said:
When a pending appeal becomes moot by reason of a settlement, rule 9.350(a) requires counsel to notify the appellate court immediately by filing a signed stipulation for dismissal of the appeal. In addition to the duty imposed by the rule, counsel are also under an ethical duty to notify the court of a settlement. Counsel have a duty of candor to the court. R. Regulating Fla. Bar 4-3.3. During the pendency of an appeal, the duty of candor imposes an obligation on counsel to notify the court of any development that may conceivably affect the outcome of the litigation, including facts that may raise a question of mootness. . . . Moreover, the parties to an appeal may not, by means of a private agreement among themselves, keep the case pending and prevent its dismissal on grounds of mootness in order to obtain what amounts to an advisory opinion. . . . Thus, regardless of any private agreement or personal interest in obtaining an opinion, counsel's duty of candor to the court compels the prompt disclosure of a settlement or other circumstances that might render a case moot.
COMMENT: In discussing with the parties and counsel, the process for formalization and implementation of the settlement agreement, Rules for Certified and Court-Appointed Mediators, Rule 10.420(c) ( Conduct of Mediation, Closure), we need to be mindful of what occurred in this case.
On the Department’s Motion to Vacate, the appellate court had this to say:
A request for the withdrawal of an opinion that has already been released to the parties and to law reporting services requires consideration of what should be done once the cat is out of the bag. We believe that our approach to this problem should be governed by practical considerations. If we had been advised by the parties immediately after the issuance of our opinion that the case was already moot by reason of a settlement, we could have prevented the opinion’s appearance in permanent form in the various reporting services by withdrawing it then. . . . Under those circumstances, withdrawing the opinion would have substantially limited its circulation. At this point, the cat is not only out of the bag, it has curled up and is nestled in one of the bound volumes of the Southern Reporter. Whether or not we withdraw the opinion, it will be available to the bench and bar for the foreseeable future and is likely to be cited. . . . Thus an announcement now that we are withdrawing our opinion would be futile. Taking this fact into account, together with the unusual circumstances of this case, we decline to withdraw our prior opinion.
Ultimately, counsel was fined $500.00, ordered to personally pay all costs of the proceedings conducted in the trial court by a specially appointed commissioner, and to obtain 15 hours of continuing legal education in appellate practice and procedure in addition to the CLE requirements of The Florida Bar.
COMMENT: In The Resolution Report, Volume 17, Number 2 (July, 2002) we identified several cases illustrating what people say to avoid mediation and how the court sanctions them [or not]. Here’s another “nice try” that didn’t work!
In Harrelson v. Hensley, 891 So.2d 635 ( Fla. 5 th DCA 2005), the parties were ordered to attend appellate mediation with the potential for sanctions for failure to appear without good cause. Here’s what happened.
The trial court order being appealed was an order granting attorney’s fees pursuant to section 57.105 of the Florida Statutes against Harrelson and her counsel. The appellate court entered an order referring the case to mediation . The order stated, among other things, that “parties with full settlement authority . . . are required to attend mediation in person unless excused by the court.” The order further provided that “failure of an attorney or party to appear for a duly scheduled mediation conference or otherwise comply with appellate mediation program procedures, without good cause, may result in the imposition of sanctions by this [appellate] court . . . .”
Pursuant to the order, the parties jointly selected a mediator and a mediation conference was scheduled. However, on the morning of the mediation conference, Harrelson’s counsel contacted opposing counsel to advise that Harrelson would not attend the mediation conference. No motion to be excused from the mediation was filed [COMMENT: That would have been a good idea, don’t you think, especially given the nature of the order on appeal!]. The mediation conference went forward with Hensley, Hensley’s counsel, and Harrelson’s counsel, but without Harrelson in attendance.
Subsequent to the mediation , Hensley filed a motion with the appellate court seeking the imposition of sanctions against Harrelson and Harrelson’s counsel for willful violation of the court’s referral order. In her response to the motion for sanctions, Harrelson simply contended that she “has been so disturbed by the obnoxious conduct of Hensley’s counsel that she has become uncommunicative and willing only to allow counsel to continue to pursue her interests in this matter without her active involvement.” Not good enough – at least not good cause! By the way, sanctions were imposed only against Harrelson and not her counsel.
The sanctions imposed:
1. All fees charged by the mediator in connection with this appellate mediation ;
2. Hensley’s reasonable attorney’s fees and costs incurred in preparing for and attending the appellate mediation and filing the motion for sanctions; and,
3. Five hundred dollars ($500.00) payable to the clerk of the appellate court as a sanction for her willful failure to comply with the court’s mediation order.
THE FIRST EVER APPELLATE COURT MEDIATION QUIZ: Which of the following responses by an attorney to an order to show cause as to why he should not be sanctioned for failing to timely file the appellate court’s mediation questionnaire rose to the level of excusable neglect?
1. I relocated my office and . . . .
2. I was negotiating to form a new law firm and . . . .
3. Staff transitions and . . . .
4. Three hurricanes were headed my way and . . . .
5. My client had returned to Poland for treatment and . . . .
6. All of the above.
7. None of the above.
The appellate court in Matajek v. Skowronska, 893 So.2d 700 [Fla. 5 th DCA 2005], concluded that numbers one through five were excuses only, not good cause for the unreasonable delay of over two months in filing the mediation questionnaire.
The court in imposing sanctions of $250.00 determined that (1) an attorney has an obligation to accomplish any relocation in a way as not to infringe on his ability to fulfill his required duties to the court and his clients, (2) negotiations to form a law firm must be done in such a way as not to infringe on his legal obligations to his clients and the court, (3) counsel is under a continuing obligation to perform his duties to the court and his clients regardless of staff changes, (4) the hurricanes provided some good cause for delay but not for the length of the delay in this case, and (5) since the questionnaire called for a description of the case, that could have been provided by counsel alone without input from the client.
COMMENT: Simply put the answers, other than number seven, were not good enough! Court orders and procedures are not just invitations or merely suggestions to do things – they are court orders and rules to be followed.
UPDATE: In The Resolution Report, Volume 16, Number 3 (October, 2001) we dedicated the entire Case and Comment article to a discussion of the case of Vitakis-Valchine v. Valchine, 793 So.2d 1094 (Fla. 4 th DCA 2001). This case established the principle that a mediated settlement agreement may be set aside if a court finds that the agreement was reached as a direct result of the mediator’s substantial violation of the Rules for Certified and Court-Appointed Mediators. As an update for you, 6 years after the mediation conference which formed the subject of the appeal, at a hearing on remand from the Fourth District Court of Appeal, the General Magistrate, on January 28, 2005, found that “there was no coercion, duress or overreaching and that there was no substantial violation of the Rules for Mediators,” and recommended that the trial judge find that the “Mediation Agreement and Final Judgment are valid and are therefore in full force and effect.”
© 2005 Perry S. Itkin All Rights Reserved. [Used with permission of the author.]