United States: Using The Power Of The Robe To Further Mediation

Last Updated: June 28 2019
Article by David W. Henry

Early in my career I had my first trial in federal court, and we had a good argument for directed verdict at the close of the plaintiff's case. Before the plaintiff reached that point, the Judge asked me if I would give her the benefit of my anticipated motion for directed verdict. I stood up and told her in my best "how clever is this" voice (as a second year associate in my first federal trial), that I did not want to give her the benefit of my anticipated motion until the plaintiff had formally closed his case (lest he be able to fill the holes). The law clerk sat still, the judge paused and then sternly, but politely, asked if I understood why she was dressed in a black robe and whether I might want to reconsider. Papers ruffling, "No problem your Honor. " Arteries in my neck resembling the visage of a salamander in August. Recess was declared after my awkward argument, prompting lead counsel to lean over and whisper, "First argument before this judge–smooth move, Henry." We did secure a voluntary dismissal when court resumed. I sheepishly drove home feeling lucky and relieved.

Lawyers need nudging from the bench from time to time. Mediation practice in Florida evolved that way. The state and federal courts made mediation a required "step" on the path to trial in the mid-1980's. This cultural shift in mediation practice occurred because of a push given by the judiciary, not the bar. It did not happen because insurers or trial lawyers asked for it. Under-funded judges with crowded dockets and the success of mediation in family courts were the driving forces for mediation in civil suits. After the implementation of the Rules of Civil Procedure to include mediation (here in Florida, Rules 1.7010 – 1.730) there were for a time "motions to dispense with mediation" as permitted by Rule. Some lawyers resisted; they didn't see the benefit right away. We do not see those motions anymore but it is a telling reflection of how lawyers viewed mediation.

Courts can and indeed must be the nudge forward once again. This time to set mediations earlier in the life of the case, and to require a second mediation in a case of any size. The mediation should not be at the tail-end of the discovery period after countless motions and hearings. Most mediations can comfortably occur within 90 days after joinder of all parties–before the cases get really expensive and experts have to be retained. A second mediation can come later in the case if warranted. Of course, cases differ but generalities are true and useful here. Mediations come too often too late.

Some may find it jaw-droppingly ponderous that in some jurisdictions mediation is "optional" at the discretion of the parties (really the lawyers). It costs the court nothing but they don't require it. Other than the expense, what could be the objection? It is not much more costly than a deposition. Even if the success rate in nascent jurisdictions was 40-50 percent (low by Florida standards) you will have thinned the docket and eliminated some misery and delay in resolution.

In a recent case I handled, I was delighted to receive a case management order from the Northern District that encouraged scheduling mediation well before the court-imposed deadline. Let's hope this is a trend. Forcing early mediation mandates that the parties communicate with one another in a constructive way as they should have before suit. Formal discovery takes a lot of time and money and does not include much of the information needed to reach resolution. Depositions are limited by what can and cannot be asked. In prior issues of this publication we noted the value of "irrelevant" and often inadmissible information at mediation. What is the least amount of information you need to mediate? That's the question for the courts to put to the parties. A large part of discovery has little value to mediation but creates large costs to be overcome at settlement. Of course, the clients have to "want" to settle.

Mediation turns on practical considerations, wants and present needs–not motions to compel, discovery practice or fodder for juries or experts. Our current system of mediation has evolved little in the past 35 years. It will be incumbent upon those wearing the black robes to nudge mediation practice and advocacy forward once again, with more efficiently-designed mediations earlier in the life of the dispute.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
Berman Fink Van Horn P.C.
Moritt, Hock & Hamroff LLP
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Berman Fink Van Horn P.C.
Moritt, Hock & Hamroff LLP
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions