Mediations: Complying with Recent Rule Changes and Local Rules
As mediation has continued to be relied upon more heavily in the litigation process, the rules governing mediation practices have evolved. Mediation is required in almost all types of litigation cases before any matter can progress to the point of holding a trial. There have been some substantial changes made in the rules governing mediation over the past year that are important to familiarize yourself with. Additionally, local rules and requirements of Judges, Circuits, Divisions, and Districts can all differ widely, so it is wise to check any local rules that may apply to your mediation before you select a mediator or try to schedule it.
Changes to FRCP 1.720
Florida Rule of Civil Procedure no. 1.720 governs mediation procedures in Florida Circuit and County Cases. The rule was amended effective January 1, 2012, and the two most notable changes are: 1) the requirement of all parties to attend mediation in person; and 2) the requirement of filing a Certificate of Attendance and Authority.
Per FRCP 1.720(b), physical presence is now required at mediation by the following parties, unless a court order or stipulation by all parties in writing is entered otherwise:
- The party or representative having full authority to settle without consulting with anyone else;
- The party’s counsel of record, if any; and
- A representative of the insurance carrier for any insured party who is not such carrier’s outside counsel, and who has full authority to settle in an amount up to the amount of the Plaintiff’s last demand or policy limits, whichever is less, without further consultation
The change in the 2011 amendment was the addition of the word “and” after items 1 and 2, making it possible that three people could be required to attend on behalf of one party at mediation. Prior to this change in the rule, it was common for parties to attend mediation telephonically, or for corporate representatives to attend, who may or may not have been familiar with the case. The rule has been made more specific to ensure the representative attending has actual authority to settle the matter, without the necessity of involving a party not present.
In addition to the change in subdivision (b) to Rule 1.720, a new subdivision (e) was added, requiring a Certificate of Attendance and Authority to be filed in advance of the mediation conference, identifying all individuals who will be attending the mediation, and confirming they have the authority to settle the case. The new subdivision reads:
(e) Certification of Authority. Unless otherwise stipulated by the parties, each party, 10 days prior to appearing at a mediation conference, shall file with the court and serve all parties a written notice identifying the person or persons who will be attending the mediation conference as a party representative or as an insurance carrier representative, and confirming that those persons have the authority required by subdivision (b).
Following the local rules
In addition to being familiar with the most recent changes to the rules in mediation procedures, it is important to consult any and all local rules or specific Judge’s practice requirements to hold a mediation conference. Some common issues that may arise are:
- Is the mediation court-ordered? Often, there are different rules that apply to the mediation conference, depending on whether the mediation has been ordered by the court yet or not. If the mediation has been court-ordered, review the order carefully for any requirements.
- If the parties have agreed to allow a party to attend telephonically, do the local rules require a court order, or is a stipulation of the parties sufficient? While the Rules of Civil Procedure state that parties can stipulate OR it can be court ordered, some Judges may require a Motion and Order to allow a party to attend by phone, even if all parties are in agreement.
- Can you continue the mediation without court approval? If so, for how long? Certain sections and/or Judges allow for a continuance, but only for a certain length of time, others require a Motion and Order to continue a mediation conference.
When you are planning a mediation conference, as with any aspect of your practice, making sure you are aware of any recent changes to procedural rules, and familiarizing yourself with the local rules governing practice requirements is paramount to a successful mediation conference.
Not Your Grandparents’ Will
Estate planning is for everyone and should not be ignored. If you don’t have a will and estate plan in place, you should begin working on one now. Traditionally, Estate Planning has been thought of a one-time transaction, but in a constantly evolving environment of technological and social considerations, it is prudent to update your Estate Plan frequently. Think of it as a ‘living plan’ rather than a static one.
Everyone should at least have the following: a last will and testament; a living will; a durable power of attorney; and a designation of a health care surrogate. In addition to these basic documents, there are some more ‘modern’ considerations to take into account in your Estate Plan. While they may not be as obviously important as your Grandmother’s china or your Great Uncle’s war medals, you need to consider your digital assets in your estate plan, as well as your more traditional tangible ones. More and more of our assets are now in digital form. Some of your digital assets have actual value, some are purely sentimental, and some may be neither.
Do you have bills set to be automatically paid from your account? Do you have social media accounts with sites like Facebook, Twitter, Google+, LinkedIn, etc.? Do you own digital music through iTunes? E-books through Amazon? How would you feel about someone posting a memorial page for you on a social media account? You should keep a copy of all of your online accounts, log-in information and passwords (banks, social media, Netflix, etc.) with your estate planning documents. It is important to provide clear and specific instructions in your will as to your intentions for any digital assets you may have. Do not, however, list user names and passwords in your actual Will, as they will become public record when it is filed.
Google currently has a function available that will transfer all of your account data (including all your email and documents stored in a Google Drive) to a designated person or persons of your choice, after your account has been inactive for a particular amount of time. In the alternative, you can also direct Google to delete all of your entire account and data after a period of inactivity designated by you.
Apple’s user agreement authorizes you to back up any music purchases on up to five devices or computers. Since their agreement only provides ‘access’ or ‘use’ to digital files and not actual possession, if you want your heirs to be able to access your digital music, you must make sure those individuals have access to back-up drives or devices. Kindle also allows family members with user ID information to access any of your digital content.
When appointing a personal representative to your estate, your representative should understand the importance of your digital assets to you. It is important that you select someone who is tech-savvy, preferably familiar with your online accounts, and able to locate your digital assets. Someone who knows about Paypal accounts and shopping websites, for example, can be sure that your credit card and account numbers are deleted from those sites. After your passing, your personal representative can contact your various social networking and photo-storing type accounts, and after proving their authority, most of those sites will release the content of your account. Many will not, however, release your user information or password.
Once your estate plan is properly in place, you can download assured that your digital property will be passed on to your loved ones. Further, you help your loved ones avoid the hassle of trying to turn off automatic payments. So, prepare or modify your will today. Then, get back to avoiding work by checking Facebook, Amazon, iTunes, or your favorite website or social media outlet.
Westerman Zetrouer, PA becomes Gold Level Sponsor for Community Associations Institute—Suncoast Chapter
Westerman Zetrouer, PA recently became a Gold Level Sponsor for the Community Associations Institute – Suncoast Chapter. As part of Westerman Zetrouer, PA’s support of the Community Associations Institute, Managing Partner Marielle Westerman, Esq. served on a Legal Q&A panel at the recent Community Associations Day & Trade Show at the Tampa Convention Center held February 19th.
During the 1 1/2 hour panel discussion, Board Members and Community Association Managers had the opportunity to get legal questions answered by four local attorneys, including Marielle Westerman.
Can My Association Disapprove Or Reject a Prospective Buyer From Purchasing a Unit or Lot?
Tyson Pulsifer, Esq., Associate Attorney
Many community association boards would like to approve owners seeking to move into the community. Disorderly and unruly residents can not only disturb the other residents’ quiet enjoyment, but can require the association to expend significant resources to enforce its rules and regulations. Additionally, owners that fail to repair and maintain their properties can cause assessments to increase and property values to decrease.
Our clients often ask whether the association has the authority to prevent a sale from being completed. Though the association cannot prevent owners from selling their property, many associations have a “right of first refusal” which can be a valuable tool to help associations mitigate the above referenced risks associated with unruly owners.
A right of first refusal is the most common, but not the only, measure an association can use to prevent a sale from being completed. A right of first refusal is “a right to elect to take specified property at the same price and on the same terms and conditions as those contained in a good faith offer by a third person if the owner manifests a willingness to accept the offer.” Steinberg v. Sachs, 837 So. 2d 503, 505 (Fla. 3d Dist. App. 2003). Florida Courts hold that though a right of first refusal is a valid restriction on real property, a restriction requiring approval to transfer property without a corresponding right of first refusal is invalid. Aquarian Foundation, Inc. v. Sholom House, Inc., 448 So. 2d 1166, 1169 (Fla. 3d Dist. App. 1984). Accordingly, an attempt to deny a property sale without providing another purchaser is an unreasonable restraint on alienation and therefore invalid.
Many association declarations contain a right of first refusal, though the process the association, current owners, and prospective purchasers must follow varies. In many instances, the owner is required to provide the association the material terms to a proposed contract to sell the property. The association may have a specified time to either approve the transfer or find another purchaser on the same terms as the proposed contract. If there is no specified time for the association to exercise its right, the right must be “exercised within a reasonable time.” Steinberg, 837 So. 2d at 506. In some instances, the association can find another buyer in lieu of purchasing the property. In most cases, the association’s failure to provide an alternative purchaser or exercise its right to purchase will be deemed an approval of the application and waiver of its right.
When drafting or revising an association’s right of first refusal, it is important to balance speedy and efficient sales with the association’s interests in maintaining property values and the peaceful enjoyment of the community. For example, exempting properties acquired by mortgagees and the association through foreclosures from complying with the right of first refusal will encourage banks to provide purchasers loans and provide the association incentives to foreclose on delinquent owners.
If your association’s declaration contains a right of first refusal, our office can evaluate whether it is necessary or prudent to revise it. Also, if your association’s declaration does not contain a right of first refusal, this office can help the association evaluate whether adding one is in the association’s short and long-term interests.
For more information, please feel free to contact our office at 727.329.8956 during normal business hours or contact us through this website.