A Modest Proposal to Avoid Discovery Nightmares

My life as a discovery mediator began with a court order appointing me to conduct a mediation among the parties on all disputed discovery issues in a complex, multiparty case. At the time, I had not heard of the term “discovery mediator.” The order was issued in Florida’s Fifteenth Judicial Circuit by Hon. Ed Artau, now an appellate judge on the Fourth District Court of Appeal. He ordered that no discovery matter in the case could be set for a court hearing unless it had first been mediated by a discovery mediator. To give the order teeth, and to start the ball rolling, he also canceled all discovery hearings already on his calendar in this case.

The Court’s Process

The court required a mediator’s report for every mediation session, summarizing the date, time and subject of the specific dispute; listing the parties and/or counsel in attendance; and noting whether there was agreement or impasse. In this case, I issued 21 mediator’s reports to the court. All but one of the reports were accompanied by an agreed order(s) resulting from the mediation session. Many sessions lasted for several hours; some required a full day. Every agreed order was minutely reviewed and ultimately initialed on every single page by all counsel involved. The attorneys—at first unable to even civilly discuss some of the disputed issues—reached resolutions with the help of a neutral mediator who had the time to listen to, read and focus on the details of their disputes. As I became more familiar with the details, the parties agreed and consented to have the court also name me as a special magistrate for the purpose of conducting all necessary in camera inspections.

Confidentiality: A Key Advantage

The confidentiality element of the mediation process was a major advantage in working out agreements among the parties. As the discovery mediator, I quickly learned the real interests of the parties behind their pending discovery requests and/or objections in private, confidential caucuses. Once I uncovered these, compromises became easier. After several long sessions, there were fewer confidential caucuses and more joint sessions as the parties became more comfortable with the process, the mediator and each other. Another element that encouraged compromise was the positive environment provided by the law firm hosting the sessions. Lunches, conference rooms and support staff for preparing the sometimes-lengthy proposed agreed orders helped everyone work together toward a common goal. 

Positive Outcomes

In this case, the discovery mediation was successful, according to the judge and the attorneys; I thought so too. Why is it relevant now? And how can you explore this option for your cases?

With the recent fast-track mandate of the Florida Supreme Court, local administrative orders requiring efficient case management and the resulting difficulty getting hearing time, discovery mediation can be a good alternative to getting bogged down in discovery litigation. It is a particularly good alternative for complex cases in which you are being stonewalled. And, yes, there is authority for the court’s referral of discovery matters to mediation—even without all parties’ consent.

Legal Authority

Most of us are familiar with the option of a special magistrate for discovery matters under Rule 1.490 of the Florida Rules of Civil Procedure, which requires the consent of all parties. With an uncooperative opposing counsel, the court has no power to make the appointment under this rule. 

Does the court nevertheless have the power to compel discovery mediation without the agreement of the parties? Yes. And there is legal authority to support this. Florida Rule of Civil Procedure 1.700(a) authorizes a judge to “enter an order referring all or any part of a contested civil matter to mediation or arbitration.” This allows a judge to refer discovery matters to mediation, even without all parties’ consent.

Cost Considerations

In the case on which I served, the attorneys getting together, face-to-face, with an experienced neutral mediator in a conducive environment with the benefit of confidentiality were able to move quickly to articulate and narrow the issues, and then reach agreements to resolve their disputes. But was it more expensive for the parties? At least one attorney involved thinks that the cost of the mediator’s time was less than what her attorneys’ fees would have been for preparation of all necessary legal briefs. 

Embracing an Innovative Approach

Most litigators have experienced the snowballing craziness that creates a discovery nightmare, bogging down a case. My experience as a discovery mediator was eye-opening. This innovative approach demands serious consideration for the cases that keep you up at night.

Disclaimer: The content is intended for general informational purposes only and should not be construed as legal advice. If you require legal or professional advice, please contact an attorney.