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Appellate mediation no-show sanctions help solidify a Florida court program.

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Alternatives
TO THE HIGH COST OF LITIGATION
VOL. 23 NO. 6 JUNE 2005
CPR INSTITUTE FOR DISPUTE RESOLUTION
Alternatives
TO THE HIGH COST OF LITIGATION
Publishers:
Thomas J. Stipanowich
CPR Institute for Dispute Resolution
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John Wiley & Sons, Inc.
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Alternatives to the High Cost of Litigation (Print ISSN 1549-4373, Online ISSN 1549-4381) is a newsletter published 11 times a year by the CPR Institute for Dispute Resolution and Wiley Periodicals, Inc., a Wiley Company, at Jossey-Bass. Jossey-Bass is a registered trademark of John Wiley & Sons, Inc.
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VOL. 23 NO. 6
JUNE 2005
CPR INSTITUTE FOR DISPUTE RESOLUTION
ALTERNATIVES 105
ADR BRIEF • ADR BRIEF • ADR BRIEF
Cases on court sanctions for bad mediation
conduct aren’t common. And appellate mediation cases are even rarer.
But a seemingly isolated April case in a
Florida state appellate court actually is the
tip of a mediation practice iceberg in that
one state appellate court. The court’s program likely will soon serve as a model for
appellate mediation throughout the state,
which has long been a leader in court mediation practices.
The appellee in Holler v. De Hoyos, No.
5D04-2912, 2005 WL 925602 (Fla.App.
5th Dist.) (opinion not yet released for
publication) (available at www.5dca.org/
Opinions/Opin2005/041805/5D042912.op.pdf ), failed to attend an appellate
mediation, and refused to sign an agreement that was struck in her absence by her
attorney and her husband, as well as the
other side.
A three-judge Florida appellate panel in
Holler found that the appellee must pay
sanctions. It refused to enforce the settlement agreement.
That’s the second time this year a mediation party has been hit with sanctions
for failing to show up in Florida’s Fifth District Court of Appeal, the only appellate
district in the state that currently has a mediation program.
The same judge wrote the two opinions, and the sanctions are identical. The
judge, William D. Palmer, has been instrumental in establishing the district’s
appellate mediation program. He screens
the court’s docket for mediation applicability along with another district appellate
judge.
The cases are part of a small line that go
back four years. The Fifth District’s appellate mediation program, and its judges’
strong views on enforcement, provide a
clear picture that the district takes its appellate mediation procedures and processes
seriously—seriously enough so that wayward parties and attorneys get fined for
missing deadlines or failing to appear.
The district’s commitment is about to
spread. Its processes, available at the mediation link at www.5dca.org, have graduated
from the pilot stage to a permanent program, and will serve as a mediation model
for the state’s four other appellate courts
districts. A subcommittee of the State
Supreme Court’s Committee on ADR
Rules and Policy is working on a uniform
program to encourage parties statewide to
try mediation for their appeals cases.
At press time, Holler was not yet finalized for publication. An appeal of the final
judgment on the original case is pending,
according to Tom Infantino, of Winter
Park, Fla.’s Infantino & Berman, who
worked on the trial case for the sanctioned
appellee. The court’s Internet docket has
the case scheduled for a May 18 argument,
after Alternatives went to press.
The original case was a declaratory
judgment action to establish a public right
of way in Winter Park, explains Infantino
in an E-mail. Infantino didn’t participate
in the mediation, or the appellate arguments over the original action’s fees.
Shawn G. Rader, a partner at Orlando,
Fla.’s Lowndes, Drosdick, Doster, Kantor
& Reed P.A., who sought the mediation
agreement’s enforcement and sanctions on
behalf of his client, says that the mediation, by stipulation, covered two appellate
cases concerning fees. The fee case appeals
are separate from the merits appeal. The
appellate mediation stayed the fee appeals—one of which was an appeal by
Rader’s client, Juliette A. Holler, for a denial of witness fees, and another by his adversaries for costs awarded against them.
Now that the mediation agreement is
mooted in the wake of the April 22 opinion, the fee case appeals will proceed.
Rader said on May 11 that the fee cases
haven’t been briefed by either side.
It appears that the mediation sanctions
will stand, since Florida appellate rules generally require rehearing, clarification or certification motions within 15 days of an order, and at press time, no such filing had
been entered into the court records. Messages left for Michael J. Appleton, an Orlando, Fla., solo, who represented the sanctioned party at the mediation and in the
Fifth Appellate District case, asking whether
(continued on next page)
Cartoon by Leo Cullum
APPELLATE MEDIATION
NO-SHOW SANCTIONS
HELP SOLIDIFY A
FLORIDA COURT PROGRAM
“Being in the pound was good for me. I got a law degree.”
106 ALTERNATIVES
CPR INSTITUTE FOR DISPUTE RESOLUTION
VOL. 23 NO. 6
JUNE 2005
ADR BRIEF • ADR BRIEF • ADR BRIEF
(continued from previous page)
the Holler sanctions would be appealed,
weren’t returned.
In Holler, appellant Holler asked the
court to force the appellees, Evelio and Elin
V. Satory De Hoyos, a married couple, to
comply with the mediation agreement
reached by Evelio De Hoyos and Appelton,
or impose sanctions. In a unanimous opinion by Judge Palmer, the panel said it didn’t
have the authority to force the appellees to
comply with the mediated settlement
agreement that was struck in Elin DeHoyos’ absence.
“However,” Palmer wrote, “this court
does have the authority to impose sanc-
Holler attorney Shawn Rader says he
“was really hoping that they would require
[Elin De Hoyos] to accept the settlement
statement,” adding that despite not attending the mediation, “she accomplished what
she wanted.” But, he quickly notes, the
companion appeals on the two fee awards
could change the picture.
***
Holler and Harrelson solidify a line of
cases on the treatment of appellate mediation misconduct that Judge Palmer and
the Fifth District panels on which he sat
have largely set out. Though the fines is-
A Florida appellate mediation
program, complete with a line of
enforcement cases, will serve as the
basis for statewide rules.
tions against [Elin De Hoyos] for her failure to attend the mediation,” citing Harrelson v. Hensley, 891 So.2d 635 (Fla. 5th
DCA 2005)(available at www.5dca.org/
Opinions/Opin2005/012405/5D041946.
op.pdf ), a January case in which Palmer on
behalf of another unanimous panel also
sanctioned a party for failing to justify her
absence from a court-ordered mediation.
In Holler, the De Hoyos were ordered
to pay within 30 days all of the mediator
fees; reasonable attorneys fees and costs to
the opposing counsel for the mediation
and the motion that resulted in the sanctions; and $500 to the court clerk “for willful failure” to comply with the court’s mediation order.
Palmer, who also included in the opinion a procedure in case the parties couldn’t
agree on reasonable attorneys fees and
costs, had imposed identical sanctions on
the Harrelson appellant.
sued by the panels aren’t extraordinarily
costly, the appellate cases strongly back
mediation policies and procedures, and
come down firmly against nonparticipating parties.
In Carbino v. Ward, 844 So.2d 820
(Fla. 5th DCA 2001), Palmer wrote the
first of the ADR sanctions opinions, where
a unanimous Fifth District Court of Appeal panel backed a trial court’s sanctions
award, for mediator costs, against a defendant who failed to show at a mediation on
an auto accident negligence case.
The panel overturned the trial court’s
denial of attorneys fees, noting that the
Florida statute required a fee award to a
party where its adversary failed to appear
without good cause.
Carbino figured in Segui v. Margrill, 893
So.2d 700 (Fla. 5th DCA 2003), where a
per curiam panel cited Carbino in awarding
attorneys fees and mediator costs. In Segui,
like Carbino, an attorney attended the mediation but the party failed to show up.
In Segui, the appeals panel—which
didn’t include Judge Palmer—disagreed
with the appellee’s contention that sanctions were unwarranted because the appellee’s attorney had full settlement authority, and he was reachable by telephone.
“We reject these arguments as meritless,”
the opinion states. “We required [the appellee] to attend mediation because a
party’s actual presence at mediation is often
critical to its success.”
The Fifth District appeals court’s case
line isn’t limited to mediation participation. The court also has been impatient
when attorneys fail to comply with other
appellate mediation process rules. For example, Palmer participated in a per curiam
panel decision earlier this year where an attorney was sanctioned $250 for a twomonths-late mediation filing.
In that case, Matajek v. Skowronska,
893 So. 2d 700 (Feb. 18, 2005), the court
rejected Tampa attorney Brian J. Almengual’s five grounds for failing to meet the
filing deadline for the court’s appellate mediation questionnaire, stating that the attorney’s response to the court’s request for
an explanation set forth “not good cause
for the unreasonable delay in filing the mediation questionnaire, but merely asserts
insufficient excuses for same. . . .”
The attorney had blamed his client’s
health problems; delays in his office’s relocation; negotiations involving a potential
new law firm; and staff turnover, all of
which the court said didn’t constitute excusable neglect. The appeals panel said a
filing delay because of the three hurricanes
that hit Florida last year was good cause for
delay—but only during the 10 days the severe weather shuttered the office.
Almengual’s office telephone was disconnected, and he couldn’t be reached for
comment.
***
Judge Palmer didn’t respond to telephone
requests to discuss the Fifth District’s appellate mediation program. But plans to grow
VOL. 23 NO. 6
JUNE 2005
CPR INSTITUTE FOR DISPUTE RESOLUTION
ALTERNATIVES 107
ADR BRIEF • ADR BRIEF • ADR BRIEF
the program to all five of the state’s appellate
courts are proceeding with the Supreme
Court ADR subcommittee’s work, says
Sharon Press, who heads the state’s Dispute
Resolution Center, which the Court operates jointly with Tallahassee’s Florida State
University College of Law.
She says there is no timetable yet for
statewide implementation. Press suggests
that the work will intensify once the state
revises its mediator qualifications rules,
since the trial court qualifications would
affect appellate-level mediators. The revisions were being finalized as this issue of
Alternatives was being printed.
The proposals to update Florida’s comprehensive mediator qualification scheme,
one of the nation’s first state court mediator
quality control efforts and one of the most
comprehensive, are available at www.flcourts.org/gen_public/adr/index.shtml.
Press says she expects that the statewide
application will mirror the Fifth District’s
program, which eschews staff mediators in
favor of a roster of private mediators who
meet the state and district requirements.
Press says a staff-based statewide appellate
mediation program was in place, but it was
abandoned, and the Fifth Circuit model,
made permanent last year after a three-year
pilot, makes more sense.
“The economic impact on the court is
minimal,” explains Michael S. Orfinger, a
shareholder in the Daytona Beach, Fla., office of the Upchurch Watson White & Max
Mediation Group. Orfinger, a Fifth Circuit
mediator, worked on establishing the Fifth
District’s mediation program, and now
serves on the Supreme Court’s subcommittee working on statewide standards.
Orfinger also backs the Fifth District’s
case treatment of its appellate ADR procedures. “It is outstanding for mediation,” he
says. Orfinger discusses the line of appellate mediation enforcement and sanction
cases in an April article in his firm’s Web
site newsletter, the Mediation Strategist,
available at the Press Room link at
www.uww-adr.com.
But he also emphasizes that he had no
view and would not comment on
Holler—since he was the appellate mediator in the case.
“The Fifth District has made clear,” he
says, citing Carbino and Segui, “that they
want the actual parties there, whether there
is an insurance adjuster there or not, and
whether the attorneys are there or not.” He
adds, “when and if the rules are adopted by
the Supreme Court so there is a statewide
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appellate mediation program, these cases
will be the defining law on the subject of
attendance.”
The effect, he says, will filter down to
trial practice in Florida’s circuit courts,
“because the attendance rules are virtually
identical.”
Shawn Rader, who successfully moved
for the Holler sanctions, says that he believes that the April 22 opinion “will actually help mediators, by letting people know
the courts are serious by enforcing the attendance aspect at mediations unless the
parties get an excused absence.”
He says the decision shows that it is
clear that courts will forcefully address mediation process issues. “It will go a long way
toward making people realize that courts
are serious about enforcing these procedures,” says Rader, “especially the appellate
procedures, where it is more of a voluntary
procedure than the circuit courts,” which
have automatic mediation referrals.
Where it’s voluntary, concludes Rader,
who is a Florida court-certified mediator,
“and both parties decided to go—to have it
end like this is disappointing and costly.”
DOI 10.1002/alt.20080
(For bulk reprints of this article,
please call (201) 748-8789.)
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