Increasingly, parties to workers' compensation proceedings are not taking their responsibility for documentation seriously. The mediation process has been a part of workers' compensation in Florida since 1989. It was a "soft-open" and certainly started slowly. Acceptance was anything but unanimous and rapid. But, by 1991, it was known and growing. In 1994, it became mandatory. Thirty years hence, there is not a lawyer in the practice that has not mediated.
Every petition that enters the OJCC system is scheduled for a mediation. That is the "mandatory" part. If the case is scheduled for a mediation when the petition arrives, the new filing will be part of that mediation. If none is currently scheduled, one will be set.
No, the OJCC computer system will not check to see if a particular date and time is convenient for all parties. Yes, there will be potentials for any lawyer to be double booked on a particular date and time (or triple). Why? Because it would be challenging to check and there are many, many cases in which two or more lawyers have filed notices of appearance for a party.
Multiple lawyers in a case for one party is good lawyering. It is redundancy and team dynamic. But, the system cannot discern which of the three lawyers might be intending to cover a mediation. Would we check for conflicts for all three lawyers for a particular party? There are also some firms that file every pleading under the firm owner's name. The lawyer who appears for mediation in those instances has sometimes not even filed a notice of appearance. Checking would be difficult, and because of these challenges it would be less than fruitful in many instances.
When a petition arrives, however, there is a brief window before the notice issues (about 40 days). In that period, the parties can see the mediation on the case scheduled in eJCC. That is the time, while the mediator's schedule remains somewhat fluid, for the parties to coordinate a date and time that does work for them. That is the solution to calendar conflict. It is not automated, but it is so very easy.
There are complaints at times that a judge issues a notice for a hearing or a "status conference" on a date/time when something is already scheduled for an attorney. No, the judge is not intentionally complicating the lawyer's schedule. The judge and staff cannot search the database to see when you are or are not available for a hearing. For that matter, no one can explain the purpose of a "status conference."
That will remain a mystery forever. Parties seek relief and judges consider relief. When parties are confused as to how they should proceed in a matter, they should consult each other. They should file motions when they need relief, and judges should adjudicate them. The process is exceedingly simple. Motions, hearings, orders. The hand-holding of "status conferences" might be appropriate in an exceedingly small number of situations and always because the judge instigates the process.
In any event, the judge is not able to tell when parties are available for a hearing. Certainly, the judge's staff should coordinate hearing times (not trial or pretrial times) when possible. But, it is on the parties, when a notice of mediation or hearing is received, to check for calendar conflicts. In the event of a conflict, it is on the party facing such a challenge to either arrange coverage by another lawyer or (1) contact opposing counsel, (2) jointly conference with the judge's staff, and (3) coordinate some accommodation for the conflict.
Hint: often when the judge schedules a hearing there is a patent reason. One might consider "why is the judge scheduling this hearing?" Review of the pending motion, stipulation, or your response might be instructive. Possibly, you and opposing counsel might sort the issue, file a new document, and avoid the hearing altogether. Or, you can wait, attend the hearing, and say "Judge, I don't know why we are here." We hear that often. It is not such a good look. It rarely means the lawyers cannot see the issue, and more often means they have not looked for the issue.
There are examples of lawyers missing mediations, hearings, and the curious "status conference." That generally results in an order to show cause (which is merely the judge's tool to ask "why"). The lawyer then files a response that says "I was not competent to notice the conflict in advance" or "I was not diligent in managing my calendar" or "I simply do not care."
No, no one ever says those things. Instead, it is a two-page dissertation that strives to avoid the implications or consequences of missing the event. It is dressed up in fine language and apology. But, make no mistake, the meaning is often essentially one of those numbered above. Missing the event, failing to notice in advance, and failing to communicate and coordinate, are all unprofessional, regrettable, and inappropriate. Such actions may contribute to your reputation and perceptions of your ability.
If the scheduled mediation will not occur, then cancellation will occur through filing of a written document. This is in Rule 60Q6.110 (4):
"If the parties resolve all issues, or all issues except for attorney’s fees, prior to the scheduled mediation conference, the attorney or unrepresented claimant who has filed a petition for benefits shall file a pleading in order to cancel the corresponding mediation. The pleading must be filed prior to the scheduled mediation and shall indicate the manner in which each issue was resolved. The preparation and filing of this pleading are not the responsibility of the mediator." (Emphasis added).
This is specific to mediation: "prior to the scheduled mediation." If the mediation is not to occur, file a notice of resolution. That is reasonably simple. The responsibility is on the petition filer. The petitioner asked for relief, instigated the process, and is now saying it is not needed. That is the party who shall (1) file a pleading, (2) prior to the mediation, and (3) indicate the manner in which each issue was resolved.
Alternatively, the person filing the petition may dismiss the petition. In many instances, that action would be more rapid and easier. However, the decision in that regard belongs to the filer of the petition.
But what if mediation does occur? Then the Rule to follow is 60Q6.110(5)(b):
"Any person attending mediation virtually shall provide an e-mail address for use in exchanging documents during the mediation. Any mediation, except when the outcome is an impasse, is not concluded until the signed agreement report is returned to the mediator. The signed agreement report shall be returned within 72 hours unless excused by the mediator." (Emphasis added).
This rule is specific and deceptively simple. The old saying is "it ain't over til its over" (Yogi Berra). The mediation is not over until the mediation report is (1) signed, and (2) returned to the mediator. This is exceedingly simple. No, there is no provision for ignoring the mediator or failing to return the report. No, filing a "notice of resolution" does not change that (1) mediation is ongoing, and (2) is not over.
Yes, it is absolutely unprofessional and rude to fail to return the mediation report to the mediator. Yes, the mediator has better things to do that repeatedly follow-up with the parties to get the agreement. Yes, making the mediator or staff or opposing counsel call you a dozen times over thirty days is irresponsible, unprofessional, and inappropriate. Yes, we will all make mistakes and have shortcomings. But, correcting that on the first follow-up call or email is the solution (OK, on the second call in exceedingly exceptional and rare instances).
No, there is no provision for filing a "notice of resolution" after the mediation. That "notice" provision is for "prior to the scheduled mediation conference." Once the mediation has occurred, the process is not about some "notice," it is about signing and returning the mediation report. The mediator has worked hard to conduct and document the mediation. The rule requires you to sign and return the report. The deadline is 72 hours (which is three days, and which is extended if the 72'd hour falls on a weekend or holiday). These are neither onerous or mysterious requirements.
In the end, all of this comes down to some simple points. First, professional lawyers are expected to be responsible, to pay attention, and to notice problems with scheduling. They are expected to communicate and seek relief when there are conflicts. They are expected to follow the rules, both "prior to the scheduled mediation" and after a mediation actually occurs.
It is troubling to see lawyers failing to appear at scheduled events. It is disappointing to hear some of the convoluted expositions that take pages to say "I was not paying attention." It is inappropriate for mediators to spend days (weeks) repetitively contacting parties for the signed mediation agreement. It is not enough, after mediation, to file a notice of resolution. Doing so abandons responsibility and leaves the mediator waiting, wondering, and frustrated.
Fortunately, this post is not written for most lawyers. It is my hope, however, that mediators, judges, and lawyers will have this post at their fingertips to forward to other attorneys. Perhaps, if you are reading this, you have frustrated someone somehow?
